CAT Commentary - Combined Extracts

OX FOR D COMMENTA R IES ON INTER NATIONA L L AW

General Editors: Professor Philip Alston, Professor of International Law at New York University, and Professor Vaughan Lowe, Chichele Professor of Public International Law in the University of Oxford and Fellow of

All Souls College, Oxford.

- e United Nations Convention Against Torture

A Commentary

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- e United Nations Convention Against

TortureA Commentary

M A NFR ED NOWA KELIZ A BETH Mc A RTHUR

with the contribution ofKerstin Buchinger

Julia KozmaRoland SchmidtIsabelle Tschan

Ludwig Boltzmann Institute of Human Rights Vienna

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United Nations Convention Against Torture66

government.¹⁴³ Following the regime change in October 2000, however, the Committee observed that, under the new political regime the incidence of torture appeared to have dropped signifi cantly and torture was no longer systematic. A e Committee found that the allegations made subsequent to 2000 concerned conduct that may not constitute torture under Article 1, but instead may fall under Article 16 CAT, and therefore outside the scope of Article 20.¹⁴⁴

4. Issues of Interpretation

4.1 Conduct92 According to Article 1(1), the term ‘torture’ means ‘any act by which

severe pain or suff ering’ is intentionally infl icted on a person. Whereas Article I of the IAPL draft refers to ‘any conduct’, Article 1 CAT is based in this respect on Article 1 of the Declaration and the Swedish draft which use the term ‘act’ which might give rise to a more narrow interpretation excluding omissions. Nothing in the travaux préparatoires indicates, however, that the drafters had in mind such a narrow interpretation which would exclude a conduct which intentionally deprives detainees of food, water and medical treatment from the defi nition of torture. Already in the Greek case, which was one of the main sources of inspiration for Article 1, the European Commission of Human Rights had held that ‘the failure of the Government of Greece to provide food, water, heating in winter, proper washing facilities, clothing, medical and den-tal care to prisoners constitutes an “act” of torture in violation of article 3 of the ECHR’.¹⁴⁵ Since States have a legal duty arising from various human rights to provide detainees with adequate food, water, medical care, clothing etc., it would indeed, as Boulesbaa suggested, be ‘absurd to conclude that the prohib-ition of torture in the context of Article 1 does not extend to conduct by way of omission’.¹⁴⁶

4.2 Infl iction of Severe Pain or Suff ering93 Torture is a particularly grave human rights violation, and in our com-

mon language understanding, a special stigma attaches to this word. During

¹⁴³ A/59/44, § 211.¹⁴⁴ Ibid, § 212.¹⁴⁵ Opinion of the Commission of 5 November 1969, (1969) XII Yearbook 461.¹⁴⁶ Boulesbaa, 14 et seq. Cf. also Burgers/Danelius, 118; Ingelse, 208.

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Article 1. Defi nition of Torture 67

the drafting of Article 1, it was, therefore, generally agreed that only con-duct which causes severe pain or suff ering, whether physical or mental, can amount to torture. Otherwise this term would be used in an infl ationary man-ner. A e word ‘severe’ can be found in the 1975 Declaration, in the Swedish and IAPL drafts. Only the USSR proposed in the General Assembly to delete the word ‘severe’, but no convincing reasons were provided for this surprising amendment. On the other hand, the US and UK Governments wished even to strengthen the required intensity of the pain or suff ering by adding the word ‘extremely’ before ‘severe’. Finally, the Swiss Government advocated that no distinction should be made between torture and inhuman treatment as to the respective severity of the suff ering.

94 A ese diff erences of opinion, at least to some extent, refl ect the diff er-ences in the approaches between the European Commission and Court of Human Rights. In the Greek case, the Commission took the position that the severity of pain or suff ering distinguishes inhuman treatment (including tor-ture) from other (including degrading) treatment, whereas the purpose of such conduct constitutes the decisive distinguishing criteria between torture and inhuman treatment.¹⁴⁷ On the basis of this defi nition, the Commission had no problems in qualifying the fi ve combined deep interrogation techniques which had been used by British security forces against suspected terrorists in Northern Ireland (wall-standing in a ‘stress position’, hooding, subjection to noise, deprivation of sleep, food and drink for longer periods of time) as tor-ture.¹⁴⁸ A is approach seems to correspond to the Swiss position during the drafting of Article 1 CAT.

95 A e UK and US position, on the other hand, seems to be inspired by the more cautious approach of the European Court of Human Rights in the Northern Ireland case. In its well-known judgment of 18 January 1978, the Court held:¹⁴⁹

In order to determine whether the fi ve techniques should also be qualifi ed as tor-ture, the Court must have regard to the distinction, embodied in Article 3, between

¹⁴⁷ Report of the Commission of 5 November 1969, (1969) XII Yearbook 186: ‘It is plain that there may be treatment to which all these descriptions apply, for all torture must be inhuman and degrading treatment, and inhuman treatment also degrading. A e notion of inhuman treatment covers at least such treatment as deliberately causes severe suff ering, mental or physical, which, in the particular situation, is unjustifi able. A e word “torture” is often used to describe inhuman treat-ment, which has a purpose, such as the obtaining of information or confessions, or the infl iction of punishment, and it is generally an aggravated form of inhuman treatment.’

¹⁴⁸ Report of the Commission of 25 January 1976, ECHR Ser. B, No. 23–1, 410.¹⁴⁹ Judgment of the Court of 18 January 1978 in Ireland v. UnitedKingdom (1978) 2 EHRR 25,

§ 167. But see the dissenting opinion of Matscher.



this notion and that of inhuman or degrading treatment. In the Court’s view, this distinction derives principally from a diff erence in the intensity of the suff ering infl icted. . . . Although the fi ve techniques, as applied in combination, undoubt-edly amounted to inhuman and degrading treatment, although their object was the extraction of confessions, the naming of others and/or information and although they were used systematically, they did not occasion suff ering of the particular intensity and cruelty implied by the word torture as so understood.

In other words: the Court arrived at the conclusion that the severity and intensity of the suff ering (and not the specifi c purpose as assumed by the Commission) was the decisive criterion for distinguishing torture, to which a ‘special stigma’ is attached (‘deliberate inhuman treatment causing very serious and cruel suff ering’), from other forms of inhuman or degrading treatment.

96 In its reasoning, the Court has also made reference to the last sentence of Article 1 of the 1975 Declaration, according to which torture constitutes an ‘aggravated’ and deliberate form of cruel, inhuman or degrading treat-ment. During the drafting of Article 1 CAT, this sentence had been deleted. Similarly, the UK and US proposals to qualify the intensity as ‘extremely severe pain or suff ering’ was defeated. A is indicates that the United Nations wished to follow more the approach of the European Commission than that of the European Court of Human Rights which, moreover, had been subjected to criticism in the public and legal literature.¹⁵⁰

97 A e fact that the UN defi nition of torture seems to be based on the approach of the European Commission has another important consequence: the distinction between justifi able and non-justifi able treatment causing severe suff ering. According to the Commission, inhuman treatment covers at least such ‘treatment as deliberately causes severe suff ering, mental or physical, which, in the particular situation, is unjustifi able’.¹⁵¹ In other words: there may be some purposes of deliberately causing severe suff ering which might nevertheless be justifi ed and, therefore, do not constitute inhuman treatment. One might think of justifi ed use of force by the police in the exercise of law enforcement policies (lawful arrest of a person suspected of having committed a crime, preventing a person lawfully detained from escaping, quelling a riot or insurrection, dissolution of a violent demonstration, defending a person against crime and unlawful violence etc.)¹⁵² and of the military in the case of

¹⁵⁰ See e.g. Spjut, (1979) 73 AJIL 267–272, 271.¹⁵¹ See the Opinion of the Commission of 5 November 1969 in the Greek Case, (1969) XII

Yearbook 186.¹⁵² Cf., e.g., the list of purposes in Art. 2(2) ECHR which might even justify lethal use of force

by the police. But see Rodley, 84 according to whom ‘the direct benefi t of the recipient’ seems to



armed confl ict. Whether such use of force can be justifi ed or must be quali-fi ed as inhuman treatment depends on the particular circumstances of a given situation to which the principle of proportionality needs to be applied. If severe pain or suff ering is caused, however, by any of the purposes listed in Article 1CAT, no justifi cation and, consequently, no proportionality test seems to be permitted. A is interpretation presupposes that the list of purposes applying to torture must be interpreted in a strict sense. As was stressed already by Burgers and Danelius, the words ‘such . . . as’ in Article 1 CAT ‘imply that the other purposes must have something in common with the purposes expressly listed’.¹⁵³ A is line of thinking also confi rms that the victims of torture are only persons deprived of their personal liberty or who are at least under the fac-tual power of control of the person infl icting the pain or suff ering.¹⁵⁴ Finally, this line of thinking might shed some light on the understanding of the ‘lawful sanctions clause’ in Article 1.¹⁵⁵

98 It follows that the severity of pain or suff ering, although constituting an essential element of the defi nition of torture, is not a criterion distinguishing tor-ture from cruel and inhuman treatment.¹⁵⁶ In principle, every form of cruel and inhuman treatment (including torture) requires the infl iction of severe pain or suff ering. Only in the case of particularly humiliating treatment might the infl iction of non-severe pain or suff ering reach the level of degrading treatment or punishment in violation of Article 16.¹⁵⁷ Whether or not cruel or inhuman treatment can also be qualifi ed as torture depends on the fulfi lment of the other defi nition requirements in Article 1, above all whether inhuman treat-ment was used for any of the purposes spelled out therein.

be the only legitimate objective of intentionally infl icting severe pain or suff ering on a person. On the discussion about the justifi ability and proportionality in relation to inhuman and degrading treatment in reaction to the Commission’s holding in the Greek Case see, e.g., AI, Report on Torture, (revised edn, London 1975) 35 et seq.; Rodley, 78 et seq.; Evans, (2002) 51 ICLQ 365–383. See also, Nowak, (2005) 23 NQHR 674. See also the report of the UN Special Rapporteur on Torture, UN Doc. E/CN.4/2006/6 on the distinction between torture and cruel, inhuman or degrading treatment or punishment.

¹⁵³ Burgers/Danelius 118; See also above, 2.2. ¹⁵⁴ See below, paras. 113 et seq. ¹⁵⁵ See below, 4.6.¹⁵⁶ See also Rodley, Current Legal Problems, 491: ‘So I maintain my preference for suppressing

the element of aggravation in the understanding of the notion of torture’; Evans, (2002) 51 ICLQ 365–383: ‘Why not abandon all thoughts of a “vertical model”and replace it with a “horizontal model”, in which “torture” and “inhuman” and “degrading” treatment all stand alongside each other’. On the distinction between torture and CIDT, see E/CN.4/2006/6. See Nowak, (2005) 23 NQHR 674.

¹⁵⁷ See below, Art.16.



103 Mexico was the fi rst country that permitted the Committee to publish the entire report of the inquiry procedure.¹⁶⁶ A e Committee concluded that ‘the police commonly use torture and resort to it systematically as another method of criminal investigation, readily available whenever required in order to advance the process’ and specifi ed that the purpose of torture nearly always was to obtain information or a self-incriminating confession.¹⁶⁷ A e torture methods identifi ed in the report were manifold and included handcuffi ng behind the back, blindfolding, deprivation of sleep, food, water and using the bathroom, mock executions, electric shocks, blows to various parts of the body, above all the ears, placing of plastic bags over the head and tightened around the neck to cause a sensation of asphyxiation, and pouring of water containing irritants such as carbonic acid or chilli powder into the mouth and/or nose while pressure is applied to the victim’s stomach.¹⁶⁸ In one prison, the Committee also considered certain punishments and ill-treatment, such as handcuffi ng and shackling for days at a time, and putting inmates undressed in a freezing, air-conditioned room for days at a time as torture.¹⁶⁹

104 Finally, in the 2004 summary account of the results of the inquiry procedure concerning Serbia and Montenegro, the Committee concluded that torture had been systematically practised in Serbia prior to October 2000 but that, under the new regime, the incidence of torture appeared to have dropped considerably and torture was no longer systematic.¹⁷⁰ A e torture methods applied during the Milosevic regime were, however, not further explained.

105 As the CCPR does not contain any defi nition of the concepts covered by Article 7 CCPR and as no legal consequences derive from the precise quali-fi cation of a particular practice, the Human Rights Committee does not consider it necessary to draw sharp distinctions between the various prohibited forms of treatment or punishment.¹⁷¹ Nevertheless, in its case law under the individ-ual complaints procedure, the Human Rights Committee sometimes made attempts to distinguish between the diff erent forms of ill-treatment. Already in the early cases concerning the military dictatorship in Uruguay in the 1970s the Human Rights Committee qualifi ed various brutal methods applied against members of the left wing opposition, usually during interrogations in the

¹⁶⁶ CAT/C/75 of 26 May 2003.¹⁶⁷ Ibid, § 218.¹⁶⁸ Ibid, §§ 143–144.¹⁶⁹ Ibid, § 165.¹⁷⁰ A/59/44, §§ 211–212.¹⁷¹ General Comments 7/16 of 27 July 1982, § 2 and 20/44 of 3 April 1992, § 4.



initial period of ‘incommunicado’ detention, clearly as torture:¹⁷² the applica-tion of electric shocks to fi ngers, eyelids, nose and genitals when tied naked to a metal bedframe (‘picana eléctrica’) or in coiling wire around fi ngers and genitals (‘magneto’), burnings with cigarettes, extended hanging from hand and/or leg chains, often combined with electric shocks, repeated immersion in a mix-ture of blood, urine, vomit and excrement (‘submarino’), standing naked and handcuff ed for great lengths of time, systematic beatings, simulated executions or amputations. With respect to Colombia, explicit fi ndings of torture were made primarily in disappearance cases, after the cases were investigated and the mortal remains had been found.¹⁷³ Torture has also been established by the Committee in other continents.¹⁷⁴ A e torture methods, which had been employed by the military security forces of President Mobuto in the former Zaire (Congo) included systematic beatings, electric shocks, mock executions, deprivation of food and water for prolonged periods, and thumb presses. In the case of Megreisi v. Libyan Arab Jamahiriya, the Committee established that ‘incommunicado’ detention in a secret location for more than three years per se constitutes torture and cruel and inhuman treatment.¹⁷⁵ But the case law does not indicate whether the particular brutality of the treatment and severity of the victims’ suff ering or the intention and purpose of the perpetrators were the distinguishing features between cruel and inhuman treatment on the one hand, and torture on the other.¹⁷⁶

4.3 Intention106 Article 1 requires that severe pain or suff ering must intentionally be

infl icted on the victim in order to qualify as torture. Purely negligent conduct, therefore, can never be considered as torture. When a detainee is, for example, forgotten by the prison guards and slowly starves to death, such conduct cer-tainly produces severe pain and suff ering, but it lacks intention and purpose and, therefore, can ‘only’ be qualifi ed as cruel and/or inhuman treatment.

¹⁷² Cf. Nowak, CCPR-Commentary, 162 with reference to the relevant cases, such as Grille Motta (No. 11/1977), Bleier (No. 30/1978), López Burgos (No. 52/1979), Sendic (No. 63/1979), Angel Estrella (No. 74/1980) and Rodriguez (No. 322/1988).

¹⁷³ Cf. the cases of Bautista (No. 563/1993) and Arhuacos (No. 612/1995).¹⁷⁴ Cf. Nowak, CCPR-Commentary, 163.¹⁷⁵ No. 440/1990.¹⁷⁶ See also Rodley, Current Legal Problems, 478, who indicates that the non-use of the word

‘torture’ in the cases of Birindra and Tshisikedi v. Zaire (Nos. 241 and 242/1987) and in Polay Campos v. Peru (No. 577/1994) might be explained by the fact that the inhuman and degrading treatment found in these cases did not take place in the context of interrogation and, accordingly, the purposive element was not apparent.


Article 2. Obligation to Prevent Torture 117

57 8 is formulation, therefore, seems to be fairly clear. States have an obli-gation to take measures to prevent torture in their own territory (land and sea), but also under any other territory under their jurisdiction, such as aboard ships fl ying their fl ag, aircraft registered in accordance with their laws, occupied territories or other territories where civilian or military authorities of the State exercise jurisdiction, whether lawful or not.

58 However, the Government of the United States recently took the pos-ition that Article 2 was geographically limited to US territory in the strict sense.¹⁴⁵ It is evident that this position is a purely ideological one aimed at exempting the US detention centres established in the so-called ‘war against terror’ to hold indefi nitely alleged terrorist suspects, such as the detention facilities at Guantánamo Bay, from international scrutiny. 8 is position had already been rejected when the US Supreme Court in June 2004 held in Rasul v. Bush that the United States is actually exercising jurisdiction at Guantánamo Bay and that the guarantees of the US Constitution are, there-fore, fully applicable to Guantánamo detainees.¹⁴⁶ In relation to the CCPR and the CAT, the fi ve independent experts of the UN Commission on Human Rights investigating jointly the situation of detainees at Guantánamo Bay clearly arrived at the conclusion that both treaties are fully applicable to the treatment of Guantánamo detainees.¹⁴⁷ In May 2006, the CAT Committee, in considering the most recent US report, confi rmed this interpretation and rejected, once more, this untenable position.¹⁴⁸ In July 2006, the Human Rights Committee joined the other monitoring bodies and concluded that the United States should acknowledge the applicability of the Covenant with respect to individuals under its jurisdiction but outside its territory.¹⁴⁹

4.2 Interpretation of Article 2(2)

4.2.1 Absolute Nature of the Prohibition of Torture59 8 e prohibition of torture and cruel, inhuman or degrading treatment

is one of the few absolute and non-derogable human rights. Both torture and cruel, inhuman or degrading treatment are prohibited, without any exception, in Article 7 CCPR and similar provisions in regional human rights treaties.

¹⁴⁵ See the US report in accordance with Art. 19 CAT of 13 January 2006, CAT/C/48/Add.3/Rev.1.

¹⁴⁶ See Rasul v. Bush (03–334) 542 U.S. 466 (2004).¹⁴⁷ See E/CN.4/2006/120, § 11.¹⁴⁸ CAT/C/USA/CO/2, § 15. See also the concluding observations of the Committee on the

report of the UK, above, 3.1.¹⁴⁹ See CCPR/C/USA/CO/3/Rev.1, § 10.



8 is absolute prohibition is also regarded as customary international law and even ius cogens.¹⁵⁰ Furthermore, Article 4(2) CCPR provides that even in times of public emergency threatening the life of the nation, no derogation from the absolute prohibition of torture and cruel, inhuman or degrading treatment may be made. Consequently, Article 3 of the 1975 Declaration and Article 2(2) of the original Swedish draft provided that no exceptional circumstances whatsoever may be invoked as a justifi cation of torture or cruel, inhuman or degrading treatment. In written comments, the delegation of the United States in 1979 proposed a new article providing that there is no justifi cation for an act of torture. 8 e United States argued, however, that cruel, inhuman or degrading treatment was a relative term and what might constitute cruel, inhuman or degrading treatment in times of peace ‘might not rise to that level during emergency situations’.¹⁵¹ In retrospect, one might wonder whether the US delegation had already foreseen a situation such as its ‘global war against terror’ which has more than anything else undermined the absolute and non-derogable prohibition of torture and cruel, inhuman or degrading treat-ment.¹⁵² Although the Holy See had welcomed the broader text of the Swedish draft ‘in light of certain schools of thought which seek to give national security priority over the rights of the person’,¹⁵³ the US position seemed to have been accepted by the drafters without much opposition. 8 e revised Swedish draft on which the fi nal text of Article 2(2) CAT is based no longer contained any reference to cruel, inhuman or degrading treatment which means that there is no explicit provision in the Convention that prohibits any derogation from the prohibition of cruel, inhuman or degrading treatment. However, since the Preamble of the Convention clearly refers to the existing standards under the CCPR and the 1975 Declaration and affi rms the desire of the drafters to make more eff ective (and not less eff ective) the struggle against torture and cruel,

¹⁵⁰ See, e.g., Nowak, CCPR-Commentary, 157 et seq. with further references.¹⁵¹ E/CN.4/1314 (1979), 11, § 53.¹⁵² See e.g. Strauss, (2004) 48 NY L Sch L Rev 201–274, 203; see also Dershowitz, (2004)

48 NY L Sch L Rev 275–294. Memorandum from Jay S. Bybee, Assistant Attorney-General for the Offi ce of Legal Council at the US Department of Justice, to Alberto R. Gonzales, Counsel to the President, (1 August 2002) (Bybee Memorandum). For a critical analysis, see e.g. Rouillard, (2005) 21(1) Am U Int’l L Rev 9–41; see also Goldman, (2004) 12(1) Hum Rts Brief 1. See also Nowak, (2006) 28 HRQ 809 with references. Long before 11 September 2001, there were discussions among specialists about whether a restriction on the ban on torture should be authorized for preventive purposes. See e.g., in Germany, Winfried Brugger, a pro-fessor at Heidelberg University, who raised the issue as early as 1996. In 2000, following a case of abduction, this professor once more called for the ban on torture to be made more fl exible in ‘excep-tional’ circumstances. Brugger, (2000) 48 AJCL 661–678.

¹⁵³ E/CN.4/1314, Add. 3 at 3, § 6.



inhuman or degrading treatment, one should not give too much weight to this retrogressive provision. In addition, Article 16(2) CAT contains an explicit savings clause in relation to other treaty provisions prohibiting cruel, inhuman or degrading treatment.¹⁵⁴

60 8 e prohibition of torture is both an absolute and a non-derogable right. Both concepts are sometimes confused. Not all absolute rights are at the same time non-derogable, and not all non-derogable rights are at the same time absolute. A human right is considered as absolute if, under normal cir-cumstances, no limitations are permitted, i.e. the Government is not author-ized by a specifi c limitation clause to balance the individual claim against certain State interests. A human right is considered non-derogable if States, under exceptional circumstances, are not permitted to derogate from their respective treaty obligations in relation to this right. For example, the right to life in Article 6 is, according to Article 4(2) CCPR, non-derogable. But it is not an absolute right because Article 6 CCPR explicitly authorizes the death penalty and other forms of non-arbitrary deprivation of life in the context of the legitimate use of force by law enforcement personnel.¹⁵⁵ On the other hand, the right to hold opinions is guaranteed by Article 19(1) CCPR ‘without interference’, i.e. as an absolute right. 8 e limitation clause of Article 19(3) only applies to freedom of expression as stipulated in Article 19(2), but not to the right to hold opinions.¹⁵⁶ But Article 19(1) is not listed as a non-derogable right in Article 4(2) CCPR and may, therefore, be subject to derogations in exceptional circumstances.

61 8 e absolute prohibition of torture, therefore, means that, under normal circumstances, torture must not be balanced against any other interest, includ-ing national security or the protection of human rights of others. All attempts to justify the practice of torture in the ‘war against global terrorism’ in order to extract information from a suspected terrorist for the purpose of, for example, saving the life of innocent civilians who are in danger of being subjected to an imminent terrorist attack (the so-called ‘ticking bomb’ scenario), clearly violate the absolute prohibition of torture as laid down in Article 7 CCPR and Article 2(2) CAT.¹⁵⁷ Accordingly, during the consideration of the US report in May

¹⁵⁴ See below, Art. 16, 3.7.¹⁵⁵ See e.g. Nowak, CCPR-Commentary, 127 et seq.¹⁵⁶ See ibid, 441 et seq.¹⁵⁷ For a recent example of the ‘ticking-bomb’ scenario, see the judgment against Wolfgang

Daschner of 20 December 2004 of the 27th penal chamber, Landgericht (court) Frankfurt am Main, NJW 2005, 692. See also Roth and Worden; 8 e International Human Rights Committee of the Law Society of England and Wales, ‘Is torture ever justifi ed?’, 8 e Graham Turnbull Essay Competition 2005/2006, London, June 2006 at <http://www.lawsociety.org.uk/documents/



2006, the Committee urged the US Government to ensure that any interro-gation rules, instructions or methods ‘do not derogate from the principle of absolute prohibition of torture’.¹⁵⁸ Similarly, Israel has been repeatedly criti-cized for undermining the absolute prohibition of torture by having author-ized ‘moderate physical pressure’ against suspected terrorists.¹⁵⁹

4.2.2 Non-Derogable Nature of the Prohibition of Torture62 Article 2(2) CAT was primarily meant to stress the non-derogable

nature of the prohibition of torture, i.e. the rule that even under exceptional circumstances, such as war, terrorism or natural disasters, States parties are not permitted to derogate from their obligation to respect and ensure the absolute prohibition of torture. Apart from the successful attempt of the United States to delete cruel, inhuman or degrading treatment from this non-derogation clause, there was little discussion during the drafting of this provi-sion. Although the French delegation wished to delete the reference to internal political instability because of its unclear meaning in international law,¹⁶⁰ this phrase remained in the fi nal text. But the diff erent examples are not exhaust-ive and only serve the purpose of illustrating what is meant by exceptional circumstances.¹⁶¹ Article 2(2) follows in this respect the examples of regional human rights treaties, such as Article 15(1) ECHR (‘war or other public emer-gency threatening the life of the nation’) and Article 27 ACHR (‘war, public danger, or other emergency that threatens the independence or security of a State Party’), whereas Article 4(1) CCPR only speaks of a ‘public emergency which threatens the life of the nation’ without giving any examples. Since Article 2(2) CAT, in contrast to Article 4(1) CCPR, does not authorize but prohibit any derogation, the scope of application of the terms ‘exceptional cir-cumstances’ or ‘any other public emergency’ is not relevant and, therefore only of a declaratory nature. Article 2(2) describes with many words what could have been expressed in a more simple way: Torture can never be justifi ed, even in the most exceptional circumstances.¹⁶²

downloads/gtec0506.pdf>; Nowak, in Jørgensen and Slavensky, 238; Poscher, in Lenzen; APT, (2007); Bufacchi and Arrigo, (2006) 23 JAP 355; Dershowitz, (2002); Shue, (2006) 37 CWRJIL 231.

¹⁵⁸ See CAT/C/USA/CO/2, § 24.¹⁵⁹ See e.g. A/49/44, §§ 167 et seq.; CAT/C/SR.295; CAT/C/SR.339. See also Ingelse, 265

et seq. For the practice of the Committee in the State reporting procedure see above, 3.1.¹⁶⁰ See E/CN.4/1314 (1979), 11, § 54.¹⁶¹ See also Boulesbaa, 79.¹⁶² Of all the drafts, Art. VI IAPL expressed this meaning in the strongest terms: ‘Torture can in

no circumstances be justifi ed or excused by a state or threat of war or armed confl ict, a state of siege,



63 Although Article 2(2) does not use the term ‘derogation’, its purpose is clearly to prohibit any derogation which might justify torture. In its consideration of the Georgian State report, the Committee confi rmed this interpretation:¹⁶³ ‘Derogation from this principle is incompatible with Article 2(2) and cannot limit criminal responsibility’. 8 e reference to criminal responsibility shows that the Committee applies the non-derogation clause also in relation to the obligation of States parties under Article 4 CAT to make torture an off ence under domestic criminal law without any exception for times of war or other public emergencies. In this respect, the legal opinion of the Bush administra-tion, as illustrated in the infamous ‘Bybee Memorandum’ of 1 August 2002, which implies that outside the territory of the United States acts of torture in the context of the ‘war on terror’ might be justifi ed as an act of ‘self-defence’,¹⁶⁴ clearly contradicts the obligation of the United States under Article 2(2) CAT.

64 In the inquiry procedure under Article 20 CAT, the Committee reminded the Government of Egypt of its obligations under Article 2(2) notwithstanding its legitimate eff orts to combat terrorism. In this connection, the Government was urged to ‘make particular eff orts to prevent its security forces from acting as a State within a State, for they seem to escape control by superior authorities’.¹⁶⁵

4.3 Interpretation of Article 2(3)

4.3.1 Prohibition of Defence of Obedience to Superior Orders in Domestic Criminal Proceedings

65 While Article 2(2) is primarily directed at governments not to derogate from their obligations to respect and to ensure the absolute prohibition of torture even in exceptional circumstances (no justifi cation of torture by the government, in particular the legislative and executive branch), Article 2(3) is primarily directed at criminal courts not to accept any defence by the accused based on a superior order (no justifi cation of torture by the judicial branch in individual cases). 8 is aspect was most clearly expressed in Article V of the IAPL draft: ‘8 e fact that a person was acting in obedience to superior orders

emergency or other exceptional circumstances, or by any necessity or any urgency of obtaining information, or by any other reason’.

¹⁶³ CAT/C/GEO/CO/3, § 10.¹⁶⁴ See US Department of Justice, Offi ce of Legal Counsel, Memorandum for Alberto R.

Gonzales, Counsel to the President, dated 1 August 2002 (the ‘Bybee Memorandum’) 2 et seq. Cf. Nowak, (2006) 28(4) HRQ 809. See also, e.g., Rouillard, (2005) 21(1) Am U Int’l L Rev 9–41 with further references. See also Goldman, (2004) 12(1) Hum Rts Brief 1–14.

¹⁶⁵ A/51/44, §§ 211 and 212.



intelligence services of the United States and Egypt had a keen interest in receiving information from Mr. Agiza relating to his alleged involvement in terrorist activities. 3 e real risk of torture in Egypt in the event of expulsion was confi rmed when, ‘immediately preceding expulsion, the complainant was subjected on the State party’s territory to treatment in breach of, at least, article 16 of the Convention by foreign agents but with the acquiescence of the State party’s police. It follows that the State party’s expulsion of the complainant was in breach of article 3 of the Convention. 3 e procurement of diplomatic assurances, which, moreover, provided no mechanism for their enforcement, did not suffi ce to protect against this manifest risk.’⁴³¹ 3 e Committee also strongly criticized the Swedish Government for not having provided it with all relevant information at an earlier stage of the Attia and Agiza proceedings and, consequently, found violations of its obligations under Article 22 as well.⁴³² In a dissenting opinion, Committee member Alexander Yakovlev criticized the fact that the bulk of the information before the Committee ‘relates to events transpiring after expulsion, which can have little relevance to the situation at the time of expulsion’.⁴³³

193 On balance, the approach of the Committee seems to be justifi ed. As the facts of these cases clearly reveal, the Committee has no genuine alter-native than to decide such cases in light of all information made available at the time of adopting its decision. But the facts of the treatment of a deported applicant in the receiving State (whether leading to a fi nding of torture or not) must not be used as evidence of a violation or non-violation of Article 3, as in fact was done in T.P.S. v. Canada. 3 e dissenting opinion of Guibril Camara, therefore, seems correct. But information provided by the parties during the proceedings, even if related to events in the receiving State subsequent to the deportation, may be taken into account for the purpose of deciding whether the risk assessment by the host State at the time of expulsion, extradition, ren-dition or deportation was in compliance with its obligations under Article 3 CAT. 3 e dissenting opinion of Alexander Yakovlev in Agiza v. Sweden seems, therefore, unconvincing.

4.5.2 Objective and Subjective Test194 In order to assess the risk of torture in the receiving State, the domestic

authorities as well as the CAT Committee must take into account both the

Ibid.⁴³¹ Ibid, §§ 13.9, 13.10.⁴³² Ibid, Separate Opinion of Committee member Alexander Yakovlev.⁴³³

05-Nowak-Chap03.indd 20605-Nowak-Chap03.indd 206 7/10/2007 7:44:30 AM7/10/2007 7:44:30 AM

Article 3. Principle of Non-Refoulement 207

general situation in the receiving State, above all the possible existence of a consistent pattern of gross, fl agrant or mass violations of human rights as indi-cated in Article 3(2), and the particular situation of the applicant.

195 In its fi rst Article 3 decision of April 1994 in Mutombo v. Switzerland, the Committee developed a particular formula for this double test which it has followed in all subsequent decisions:⁴³⁴

3 e aim of the determination, however, is to establish whether the individual con-cerned would be personally at risk of being subjected to torture in the country to which he would return. It follows that the existence of a consistent pattern of gross, fl agrant or mass violations of human rights in a country does not as such constitute a suffi cient ground for determining that a person would be in danger of being subjected to torture upon his return to that country; additional grounds must exist that indi-cate that the individual concerned would be personally at risk. Similarly, the absence of a consistent pattern of gross violations of human rights does not mean that a per-son cannot be considered to be in danger of being subjected to torture in his specifi c circumstances.

196 On the basis of this ‘Mutombo formula’, the Committee usually fi rst examines the general situation in the country and afterwards the particular risks for the individual applicant. If it arrives at the conclusion that torture is practised systematically in the receiving State, the burden of proof shifts to the host State which must provide strong arguments to show why the applicant would not face the risk of being subjected to torture if deported. In the absence of such evidence, the Committee usually fi nds a violation of Article 3.⁴³⁵ Only in relatively few cases of systematic torture in the receiving State did the Committee arrive at the conclusion that the applicant was not personally at risk of torture.⁴³⁶ On the other hand, it is not seldom that the Committee found a violation of Article 3 on the basis of a personal risk assess-ment in the absence of a consistent pattern of torture or other gross or mass human rights violations in the receiving State.⁴³⁷

4.5.3 Internal Flight Alternative197 In some cases, the host State argued that the applicant was not person-

ally at risk given that he or she could fi nd a safe area elsewhere in the receiving

No. 13/1993, § 9.3. See Suntinger, (1995) 49 AJPIL 115.⁴³⁴ Cf., e.g., Nos. 13/1993 (Zaire), 15/1994 and 21/1995 (Turkey), 120/1998 (Somalia), 149/1999 ⁴³⁵

(Iran), 133/1999 (Mexico). See also above at 3.3.1. Cf., e.g., Nos. 177/2001 (Somalia), 199/2002 (Egypt).⁴³⁶ Cf., e.g., No. 63/1997 (Spain).⁴³⁷



State. If the Committee determined that the situation in the receiving State constituted a consistent pattern of gross, fl agrant or mass violations of human rights, it usually did not accept the possibility of an internal fl ight alterna-tive.⁴³⁸ But in H.M.H.I. v. Australia, it took into account that Australia ‘does not intend to return the complainant to Mogadishu, and that the complainant will be at liberty to avail himself of the UNHCR voluntary repatriation pro-gramme and choose the area of Somalia to which he wishes to return’.⁴³⁹ 3 is argument was, however, only an additional reason for not fi nding a violation of Article 3. 3 e main argument was that, three years after its decision in Elmi v. Australia,⁴⁴⁰ Somalia possessed a Transitional National Government, and the risk of torture by members of General Aideed’s Hawiye clan must now be considered as threats from non-State actors.⁴⁴¹

4.5.4 Refoulement and Asylum Procedure198 Governments sometimes argue that non-refoulement complaints to

the CAT Committee have been misused by asylum seekers for the purpose of circumventing the asylum procedure.⁴⁴² 3 ere is indeed a certain risk that asylum seekers whose asylum request is refused by domestic authorities may turn to international human rights treaty monitoring bodies, such as the CAT Committee, for protection by invoking the non-refoulement principle. Indeed, the fi rst cases of asylum seekers who had successfully invoked a violation of Article 3 CAT before the CAT Committee⁴⁴³ raised high hopes among the international refugee and human rights community and led to a signifi cant increase in the number of Article 3 complaints to the CAT Committee.⁴⁴⁴ 3 e Committee, eager to avoid the impression of acting as a kind of highest asylum review board or fourth instance, reacted by declaring a considerable number of similar complaints by asylum seekers from Zaire, Nigeria, Ghana, Algeria, Georgia and Iran inadmissible.⁴⁴⁵ In the case of the Spanish Refugee Aid Commission acting on behalf of an Algerian member of the Front Islamique

Cf., e.g., Nos. 21/1995 (Turkey), 120/1998 (Somalia). See also above at 3.3.3.3.3.⁴³⁸ No. 177/2001, § 6.6.⁴³⁹ No. 129/1998. See above, paras. 118, 125, 130, 142, 145 and 185. ⁴⁴⁰ On the question of the risk of torture by non-State actors see above at 4.4.⁴⁴¹ Cf., e.g., Nos. 13/1993, § 9.2; 15/1994, § 12.3; 34/1995, § 9.6; 138/1999, § 7.3.⁴⁴² Cf., e.g., Nos. 13/1993, 15/1994, 21/1995, 34/1995, 43/1996, 41/1996, 39/1996, 101/1997.⁴⁴³ Cf. Suntinger, (1995) 49 AJPIL 115; Nowak, (1996) 14 NQHR 435–437; Andrysek, (1997) ⁴⁴⁴

9 IJRL 392–414, 407; Gorlick, (1999) 11 IJRL 479.Cf., e.g., Nos. 17/1994, 18/1994, 22/1995, 23/1995, 24/1995, 26/1995, 30/1995, 31/1995, ⁴⁴⁵

32/1995, 35/1995. See further Nowak, (1996) 14 NQHR 435–437; Gorlick, (1999) 11 IJRL 479, 491.


Article 3. Principle of Non-Refoulement 209

du Salut (FIS) v. Spain, the Committee explicitly stated that the complaint was a matter of political asylum, and that ‘its authority does not extend to a determination of whether or not the claimant is entitled to asylum under the national laws of a country, or can invoke the protection of the Geneva Convention relating to the Status of Refugees’.⁴⁴⁶ Similarly, in the case of a Georgian couple against the Netherlands, the Committee rejected the com-plaint as non-substantiated since it related to a claim of asylum.⁴⁴⁷

199 3 ere are indeed many similarities between the asylum and the non-refoulement procedures, and a certain overlap cannot be avoided. Article 1 of the 1951 Refugee Convention defi nes a refugee as a person, who is outside his or her country of origin (nationality or habitual residence) owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, and who is not able or will-ing to avail himself or herself of the protection of that country. Refugees who have been persecuted on any of the grounds mentioned above have often been subjected to torture and similar forms of ill-treatment. If their asylum request is rejected, for whatever reasons, by the authorities of the country where they sought protection from persecution, they are often afraid of being returned to their country of origin. Although the UNHCR is entrusted by Article 35 of the Refugee Convention with the ‘duty of supervising the application of the provisions of this Convention’, no formal individual complaints can be lodged against the rejection of asylum requests by domestic authorities to the UNHCR or any other international monitoring body.

200 One reason for rejecting an asylum application can be found in the exception clauses of the Refugee Convention. Article 1(F) provides that the provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that he or she has commit-ted a crime against peace, a war crime, a crime against humanity, a serious non-political crime or has been guilty of acts contrary to the purposes and principles of the United Nations.⁴⁴⁸ Similarly, the specifi c non-refoulement protection of Article 33(1) of the Refugee Convention may, according to Article 33(2), not be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the host country or who, having been convicted by a fi nal judgment of a particularly serious

X v. Spain⁴⁴⁶ , No. 23/1995, § 7.3.X and Y v. Netherlands⁴⁴⁷ , No. 31/1995, § 4.2.See Goodwin-Gill, (1996) 95 et seq.⁴⁴⁸



crime, constitutes a danger to the community of that country.⁴⁴⁹ In con-trast to the Refugee Convention, Article 3 CAT provides an absolute pro-tection against refoulement. 3 is interpretation has been confi rmed by the CAT Committee in the well known case of Tapia Paez v. Sweden, which concerned a Peruvian citizen and member of the Sendero Luminoso organ-ization. 3 e Swedish authorities refused his asylum application in 1995 by invoking the exception clause in Article 1(F) of the Refugee Convention on account of his armed political activities in Peru. In fi nding a violation of Article 3 by Sweden, the Committee considered that ‘the test of article 3 of the Convention is absolute . . . 3 e nature of the activities in which the per-son concerned engaged cannot be a material consideration when making a determination under article 3 of the Convention.’⁴⁵⁰

201 3 is categorical statement of the absolute nature of the non-refoulement principle, which rules out any balancing of interests between the individual right not to be subjected to torture by means of expulsion and national secur-ity concerns, is of utmost importance in the global fi ght against terrorism after the events of 11 September 2001. On 11 January 2002, only a few months after 9/11, the Supreme Court of Canada rendered a highly controversial judg-ment in the Suresh case concerning the deportation of a leading fi gure of the Liberation Tigers of Tamil Eelam (LTTE) to Sri Lanka by invoking the ‘dan-ger to the security of the country’ exception clause in Article 33(2) of the Refugee Convention. 3 e Supreme Court ruled that ‘generally to deport a refugee, where there are grounds to believe that this would subject the refugee to a substantial risk of torture, would unconstitutionally violate the Charter’s s.7 guarantee of life, liberty and security of the person.⁴⁵¹ 3 is said, we leave open the possibility that in an exceptional case such a deportation might be justifi ed either in the balancing approach under ss.7 or 1 of the Charter.’⁴⁵² 3 is ‘balancing approach’ is defi nitely not permissible under Article 3 CAT, to which Canada is a State party.⁴⁵³

See ibid, 139 et seq.⁴⁴⁹ No. 39/1996, § 14.5.⁴⁵⁰ Section 7 of the Canadian Charter of Rights and Freedoms reads as follows: ‘Everyone has ⁴⁵¹

the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice’.

Manickavasagam Suresh v. Canada (Minister of Citizenship and Immigration)⁴⁵² , 2002 SCC 1, File No. 27790 at § 129. Cf. Okafor and Okoronkwo, (2003) 15 IJRL 30; Carver, (2002) 40 ALR 465.

Cf. the concluding observations of the CAT Committee on the report of Canada of May ⁴⁵³ 2005, CAT/C/CR/34/CAN, § 4(a), expressing its concern at ‘the failure of the Supreme Court of Canada, in Suresh v. Minister of Citizenship and Immigration, to recognize at the level of domestic


Article 4. Obligation to Criminalize Torture 247

of the obligations established by the Convention, as it provides minimal pro-tection against torture provided for under criminal law, impedes the investi-gation of complaints and fosters impunity for the guilty’. Such weaknesses, the Committee believed, were attested to by the small number of judicial investi-gations of torture and the even smaller number of government employees who have been punished.⁶⁶


4.1 Interpretation of Article 4(1)46 3 e obligation of States to criminalize torture is based on Article 7 of

the 1975 Declaration, which was reproduced literally in Article 7(1) of the original Swedish draft.⁶⁷ On the initiative of the UK delegation, the words ‘as defi ned in Article 1’ were deleted, since it was clear that the defi nition of tor-ture in Article 1 applied throughout the Convention. Although some States, such as France, maintained that not only torture but also cruel, inhuman or degrading treatment should be criminalized by severe penalties in domestic law, the majority of States were of the opinion that a State obligation to crimin-alize such behaviour should only apply to torture in the narrow sense. Although the Committee in the context of the State reporting procedure occasionally criticized States parties for not including cruel, inhuman or degrading treat-ment in their criminal legislation,⁶⁸ both the formulation of Article 4(1) and the travaux préparatoires clearly indicate that the obligation to criminalize does not apply to cruel, inhuman or degrading treatment. Article 16 requires States parties explicitly to prevent, but not to punish cruel, inhuman or degrading treatment.

47 3 e second sentence was only slightly amended by deleting the word ‘incitement’ which seems, however, to be covered by the broader terms ‘com-plicity or participation’. 3 e Working Group wished to ensure, by adding a footnote to its draft of Article 4(1), that the term ‘complicity’ also includes the concept of ‘concealment’ after torture has been committed. Article 4(1) is closely related to the defi nition of torture in Article 1(1) which includes instiga-tion, consent and acquiescence. In other words, the terms ‘complicity or partici-pation’ must be interpreted to include incitement, instigation, superior orders

⁶⁶ A/56/44, §§ 144–193, § 22.⁶⁷ On the travaux préparatoires see above, 2.⁶⁸ See e.g. the concluding observations on the third report of the Ukraine in CAT/C/SR.287,

§ 28. See also Ingelse, 340 et seq.



or instructions, consent, acquiescence and concealment.⁶⁹ 3 is broad inter-pretation was also confi rmed by the Committee in the State reporting proced-ure.⁷⁰ Any involvement of doctors, even only for the purpose of ensuring that the victim does not die or suff er physical injuries, is of course punishable as a form of participation.⁷¹ Superior offi cials are also guilty of complicity (acquies-cence) in torture if they knew or should have known that torture is practised by personnel under their command.⁷² Finally, for raising criminal responsibility, an act of torture does not need to be committed, since the off ence of torture shall also apply to an attempt to commit torture. If law enforcement offi cers refuse to follow a respective order by a superior and do not apply torture meth-ods, the superior offi cer is nevertheless guilty of an attempt to commit torture and shall be punished accordingly.⁷³

48 Article 4(1) requires every State party to ‘ensure that all acts of torture are off ences under its criminal law’. According to Burgers and Danelius, this ‘does not mean that there must be a specifi c, separate off ence corresponding to torture under article 1 of the Convention’.⁷⁴ 3 is interpretation has given rise to much confusion, and many States parties argued that torture was in any way included in their traditional off ences, such as ill-treatment or infl ic-tion of bodily harm. Although Burgers and Danelius were of the opinion that each State party was free to decide whether to deal with torture as a separate off ence or to include acts of torture in one or more wider categories of off ences, they insisted that ‘whatever solution is adopted, the criminal law must cover all cases falling within the defi nition in article 1 of the Convention’.⁷⁵ Practice shows, however, that it is diffi cult, if not impossible, to cover all the diff erent aspects included in the defi nition of torture under Article 1 without explicitly incorporating this defi nition in the domestic criminal code. Moreover, it is diffi cult to establish universal jurisdiction without a clear defi nition of the crime of torture in accordance with the Convention.

⁶⁹ See also Burgers/Danelius, 130; Rodley and Pollard, (2006) 2 EHRLR 115–141. ⁷⁰ See above, 3.1. cf. also Ingelse, 340 with further references. ⁷¹ See e.g. CAT/C/SR.77, § 28; CAT/C/SR.105, § 5. ⁷² On the concept of acquiescence see also the case of Hajrizi Dzemajl et al. v. Yugoslavia,

No. 161/2000, § 9.2 and 10. See below, Art.16, 2.2.⁷³ See e.g. the well-known case of the deputy director of the Frankfurt police, who ordered the

application of torture for the purpose of extracting information from a kidnapper on the where-abouts of a kidnapped child: see Judgment against Wolfgang Daschner of 20 December 2004 of the 27th penal chamber, Landgericht (court) Frankfurt am Main, NJW 2005, 692.

⁷⁴ Burgers/Danelius, 129.⁷⁵ Ibid.



49 3 is experience is also refl ected in the practice of the Committee in the State reporting procedure.⁷⁶ After initial hesitation, the Committee increasingly urged States to include an explicit defi nition of torture in their national criminal legislation. In the concluding observations on the report of the Russian Federation, the Committee for the fi rst time made clear that the inclusion of torture as an off ence in accordance with the defi nition in Article 1was legally required by Article 4.⁷⁷ Although the Committee does not go as far as requiring that Article 1 must be reproduced verbatim in domestic crim-inal law, such full incorporation is nevertheless advisable in order to avoid diffi cult problems of interpretation and implementation. Needless to say, this conclusion does not apply to the ‘lawful sanctions’ clause in the last sentence of Article 1(1).

4.2 Interpretation of Article 4(2)50 3 e text of Article 4(2) is based on a UK proposal which replaced a simi-

lar wording in the original Swedish draft.⁷⁸ 3 e words ‘punishable by severe penalties’, which were taken from Article 2 of the Hague Convention for the Suppression of Unlawful Seizure of Aircraft of 1970⁷⁹ and Article 3 of the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 1971⁸⁰ were replaced by ‘appropriate penalties which take into account their grave nature’. 3 is formulation is taken verbatim from Article 2(2) of the New York Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons of 1973⁸¹ and Article 2 of the International Convention Against the Taking of Hostages of 1979.⁸²

51 In our opinion, there is no signifi cant diff erence between ‘severe pen-alties’ and ‘appropriate penalties which take into account their grave nature’. 3 e provision of Article 4(2) makes clear that torture is one of the most severe human rights violations that requires a punishment severe enough to have a deterrent eff ect. 3 is means that torture should not be a misdemeanour, but a crime similar to the ‘most serious off ences under the domestic legal system’.⁸³ From a human rights perspective, an appropriate penalty is, therefore, neither

⁷⁶ See above, 3.1 Ingelse, 337 et seq.⁷⁷ See CAT/C/SR.268, § 2 and above, 3.1.⁷⁸ See above, 2.⁷⁹ 860 UNTS 105; 10 ILM 133 (1971).⁸⁰ 974 UNTS 177; 10 ILM 1151 (1971).⁸¹ 1035 UNTS 167, 13 ILM 41 (1974).⁸² 1316 UNTS 205; 18 ILM 1456 (1979).⁸³ Cf. Burgers/Danelius, 129.



a fi ne nor short-term imprisonment, but also not life imprisonment, corporal or capital punishment. In the reporting procedure, the Committee did not arrive at a clear determination what would constitute an appropriate punish-ment. After a careful examination of the Committee’s concluding observa-tions and the opinions of individual members, Chris Ingelse concluded that a ‘custodial sentence of between six and twenty years’ would best correspond to the Committee’s interpretation of the requirements of Article 4(2).⁸⁴ If civil servants have been found guilty of the crime of torture, the granting of par-dons or amnesties also amounts to a violation of Article 4(2).⁸⁵

4.3 Can a Violation of Article 4 be Invoked by an Individual Complaint of Torture Victims?

52 3 e Convention contains various State obligations aimed at prevent-ing torture and punishing the perpetrators of torture. From the text of these provisions, it is not always clear whether they also provide subjective rights which can be invoked by victims of torture in the individual complaints pro-cedure. 3 is question is particularly diffi cult to answer in relation to the obli-gation of States to punish perpetrators, because human rights law, in principle, does not recognize a subjective right of victims to have perpetrators of human rights violations punished by criminal law. In the landmark decision of Hugo Rodriguez v. Uruguay, which concerned a victim of torture under the former military regime, who submitted a complaint against the later civilian regime for having enacted in 1986 a comprehensive amnesty law, the Human Rights Committee noted with deep concern that the adoption of this law eff ectively excluded the possibility of investigations into past human rights abuses and thereby prevented the State party from discharging its responsibility to pro-vide eff ective remedies to the victims of those abuses and, consequently, found a violation of Article 7, in conjunction with Article 2(3) CCPR.⁸⁶ Similarly, the CAT Committee, in the well known Argentine ‘Punto Final ’ cases, held in an obiter dictum that Argentina is ‘morally bound to provide a remedy to vic-tims of torture and to their dependants’, and that the enactment of the ‘Punto Final ’ and Due Obedience Acts only shortly before the entry into force of CAT was ‘incompatible with the spirit and purpose of the Convention’.⁸⁷

⁸⁴ Ingelse, 342.⁸⁵ See Guridi v. Spain, No. 212/2002, § 6.7. See above, 3.2.⁸⁶ See No. 322/1988, §§ 12.3 and 12.4; Nowak, CCPR-Commentary, 66 and 180. ⁸⁷ Nos. 1, 2 & 3/1988, § 9. For the facts see above, Art. 2 , para. 43.



53 In a number of individual complaints against Tunisia, in which the appli-cants had claimed violations of various articles of the Convention, including Article 4, on the grounds that Tunisia had failed to criminalize torture and to take any action to investigate their allegations of torture and to bring the per-petrators to justice, the CAT Committee found violations of Articles 12 and 13 CAT. But it avoided ruling on the alleged violation of Article 4 and other provisions invoked by simply stating that ‘there are insuffi cient elements to make a fi nding on the alleged violation of other provisions of the Convention raised by the complainant at the time of adoption of this decision’.⁸⁸

54 But in the case of Guridi v. Spain, the Committee found for the fi rst time a violation of Article 4(2).⁸⁹ It ruled that pardoning civil guards, who had been found guilty of torture by an independent court, violated the victim’s rights under Article 4(2), stating that, ‘in the circumstances of the present case, the imposition of lighter penalties and the granting of pardons to the civil guards are incompatible with the duty to impose appropriate punishment’.⁹⁰

55 Although the decision lacks a proper reasoning, we agree with the broad interpretation of the victim requirement by the Committee. In view of con-temporary human rights theory,⁹¹ including the need to fi ght impunity and the recognition, by the UN Commission on Human Rights, of a right of victims of gross human rights violations to a remedy and reparation,⁹² the argument of the Spanish Government that the interests of the victims were unaff ected by the decisions of Government authorities in relation to perpetrators of gross violations of human rights, including torture, is no longer acceptable.

56 3 e object and purpose of the CAT is to make the struggle against torture and cruel, inhuman or degrading treatment more eff ective by estab-lishing additional State obligations to prevent torture and cruel, inhuman or degrading treatment, to assist victims of torture and to punish acts of torture. In addition to the reporting procedure, CAT explicitly envisages complaints and inquiry procedures. States parties who made the respective optional dec-laration under Article 22(1) CAT thereby recognize the competence of the

⁸⁸ < abti v. Tunisia, No. 187/2001, § 10.9; Abdelli v. Tunisia, No. 188/2001, § 10.9; Ltaief v. Tunisia, No. 189/2001, § 10.9. For a detailed description of the facts see above, 3.2.

⁸⁹ No. 212/2002, § 6.7.⁹⁰ Ibid, § 6.7.⁹¹ See e.g. Nowak, Introduction, 63 et seq.⁹² See the so-called van Boven/Bassiouni Guidelines (‘United Nations Basic Principles and

Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’), adopted in GA Res. 60/147 of 16 December 2005. See also Nowak, in Coomans et al.; Nowak, in Ulrich et al.; de Feyter et al.


Article 5. Types of Jurisdiction over the Off ence of Torture 317

6.2 , e Obligation of States Parties to Establish Universal Jurisdiction According to the Principle ‘aut dedere aut iudicare’

163 Both the wording of Article 5(2) and the travaux préparatoires clearly indicate that States parties have a legal obligation to take the necessary legisla-tive, executive and judicial measures to establish universal jurisdiction over the off ence of torture, as defi ned in Article 1 CAT. D is means, in particular, that States are not permitted to make the exercise of universal jurisdiction depend-ent on any legal act of another State. All attempts by States in the Working Group to establish an order of priority among the diff erent grounds of juris-diction mentioned in Article 5 or to make universal jurisdiction dependent on a request for extradition by another State have been rejected by well-informed decisions arrived at after extensive discussions. D at ‘the obligation to pros-ecute the alleged perpetrator of acts of torture does not depend on the prior existence of a request for his extradition’ was also explicitly confi rmed by the Committee against Torture in the Habré case.¹⁷⁰

164 D e only alternative to prosecuting an alleged torturer present in its territory is to extradite him or her, in accordance with the principle ‘aut dedere aut iudicare’ provided for in Article 7, to the State where the act of torture was allegedly committed, to the fl ag State or to a State exercising jurisdiction on the basis of the active or passive nationality principle. But extradition is only possible on the basis of an extradition request from any of the States mentioned in Article 5(1). If none of these States requests an extradition, the State where the alleged torturer is present has no legal alternative other than to investigate thoroughly the allegations of torture and, if the evidence found seems to be suffi cient, to prosecute the person concerned before its criminal courts.

165 If the State where the act of torture was allegedly committed (the ter-ritorial State) or another State requests extradition, the State where the alleged torturer is present (the forum State) has the choice of freely deciding whether to prosecute or to extradite in accordance with bilateral or multilateral extradi-tion treaties. Since no order of priority had been established among the various grounds of jurisdiction in Article 5, there is no legal obligation to extradite the alleged torturer to his or her State of nationality or to the State where the act of torture was committed. On the contrary, in deciding whether or not to extradite, the government must comply with the principle of non-refoulement as laid down in Article 3 and with the purpose of Article 5, namely to avoid safe havens for torturers. In other words, if there are any indications that the home

¹⁷⁰ Suleymane Guengueng et al. v. Senegal, Comm. No. 181/2001, § 9.7. See above, 3.2.2 and 4.1.



State or the State where the act of torture was committed requested extradition for the purpose of shielding the alleged torturer against eff ective prosecution, such an extradition request shall not be met and the alleged torturer shall be prosecuted under the universal jurisdiction principle. D e same holds true if the alleged torturer would be at risk of torture in a State requesting his or her extradition, in particular if he or she belonged to a regime that was later overthrown or if a State wishes to exercise jurisdiction on the ground that its nationals had been subjected to torture.

6.3 What are the Conditions for Exercising Universal Jurisdiction?166 D e only conditions for exercising universal jurisdiction are the presence

of an alleged torturer in any territory under a State party’s jurisdiction, and reliable information being available to the authorities of a government that the person concerned has committed an act of torture anywhere in the world, at least by instigation, consent or acquiescence. D e broad formulation ‘present in any ter-ritory under its jurisdiction’ makes clear that the obligation to exercise universal jurisdiction also extends to territory under military occupation or similar de jure or de facto control.¹⁷¹ D e United States, which has been the strongest supporter of the principle of universal jurisdiction, is, for example, required to establish universal jurisdiction over any alleged torturer whom its armed forces detain in Afghanistan, Iraq or any other place under their control, such as Guantánamo Bay. D e reason why an alleged torturer is present on the territory of a State party is irrelevant. He or she might reside there as in the Habré case (Senegal), might come temporarily for the purpose of medical treatment, as in the cases of Pinochet (United Kingdom), Almatov (Germany) and al-Duri (Austria), for educational purposes, as in the case of Ould Dah (France), for seeking asylum, as in the Zardad case (United Kingdom) or for any other private or business rea-son. Even the offi cial invitation to attend a conference or similar event would not release the authorities from exercising universal jurisdiction.

167 When does the alleged torturer have to be present in the territory of the forum State? Article 5(2) clearly spells out that States parties shall establish universal jurisdiction over torture in cases where the alleged off ender is pre-sent in its territory. One may, therefore, conclude that the alleged torturer must be present in the territory of the forum State at the time when universal jurisdiction is established. D is is usually the time when criminal proceedings are instituted against the accused under the ground of universal jurisdiction

¹⁷¹ For the interpretation of this formulation, which also can be found in Arts. 2(1) and 5(1)(a), see above, para.145 and Art. 2, 4.1.2.



and/or the time when certain measures are taken against the accused, such as arrest, pre-trial detention or similar legal measures aimed at ensuring his or her presence in accordance with Article 6(1). In the Bouterse case, the Dutch Supreme Court held that courts in the Netherlands shall not assert universal jurisdiction in absentia. Preparatory investigations might start earlier, but at the moment of instituting formal proceedings and/or issuing an arrest war-rant, the suspected torturer must be present in the territory.¹⁷² D is means, a contrario, that proceedings may continue in absentia if the accused manages to fl ee. D is position was taken by the French Supreme Court in the Ould Dah case. D e Mauritanian army commander had been arrested and placed in pre-trial detention by French authorities in Montpellier in 1999, but was later released and put under judicial control. Although he managed to fl ee to Mauritania, the Supreme Court remitted the case in October 2002 to the Cour d’assises in Nimes for a trial in absentia. In July, 2005, the accused was convicted and sentenced to ten years’ imprisonment in absentia.¹⁷³

168 D e authorities of the forum State enjoy, of course, a certain margin of discretion in deciding whether or not the information available is suffi cient and reliable enough to arrest the person concerned and to carry out proper crim-inal investigations. In most cases in which the victims of torture, members of Parliament, non-governmental or inter-governmental organizations urged a government to take respective action, the government either denied its compe-tence, as in the Al-Duri and Habré cases, or it denied having suffi cient infor-mation available to start criminal investigations, as in the Almatov case.¹⁷⁴ Of these three well known cases, only the Habré case was submitted to the CAT Committee which found a clear violation by Senegal of its obligations under Articles 5(2) and 7. D ere can be no doubt that the Governments of Austria (in the Al-Duri case) and Germany (in the Almatov case) also violated their obligations under Articles 5(2) and 6. In particular, both Governments had an obligation under Article 6 to ensure the presence of the suspected torturers. Secondly, they were under an obligation to carry out a preliminary investi-gation of the facts. If no other State had requested extradition of Mr. al-Duri or Mr. Almatov, Austria and Germany, as forum States, would have had no choice but to bring both individuals to justice before their domestic courts.

¹⁷² For the facts of the Bouterse case see above, 4.5.¹⁷³ For the facts of the Ould Dah case see above, 4.6. D e more liberal interpretation by Spanish

and Belgian courts does not seem to be in line with the requirement of Art. 5(2). See e.g. the Pinochet case, above, 4.2; and the Habré case before Belgian courts, above, 4.1.

¹⁷⁴ For the facts of these cases see above, 4.1, 4.3 and 4.4.



6.4 What are the Measures which States Parties shall Take?169 First of all, States parties are under an obligation to take the necessary

legislative measures to establish the legal possibility of exercising universal juris-diction in respect of the crime of torture. In the Habré case, the Government of Senegal had argued, while being aware of the need to amend its legislation, that ‘under the Convention a State party is not bound to meet its obligations within a specifi c time frame’ and ‘Senegal is engaged in a very complex process that must take account of its status as a developing State and the ability of its judicial system to apply the rule of law’.¹⁷⁵ D e applicants, although rightly stressing that ‘the State party was bound by the Convention from the date of its ratifi -cation’ and ‘could have taken the opportunity to amend its national legislation even before it ratifi ed the Convention’, nevertheless submitted as a subsidiary argument that Senegal violated Article 5(2) by ‘not adopting appropriate legis-lation to comply with the Convention within a reasonable time frame’.¹⁷⁶ D e Committee against Torture, which already in its concluding observations on the second periodic report of Senegal on 9 July 1996 had recommended that the State party, during its current legislative reform, should have introduced relevant provisions to ‘permit the State party to exercise universal jurisdiction as provided in articles 5 et seq. of the Convention’,¹⁷⁷ took up this subsidiary argument and based its fi nding of a violation of Article 5(2) on the consider-ation that ‘the reasonable time frame within which the State party should have complied with its obligation has been considerably exceeded’.¹⁷⁸

170 As soon as an alleged torturer is present in any territory under a State party’s jurisdiction, the government is under an obligation under Article 6(1) to ensure his or her presence by taking eff ective measures, above all by taking the person into custody. D e criminal investigation authorities shall immediately make a preliminary inquiry into the facts in accordance with Article 6(2) and notify all States referred to in Article 5(1), above all the alleged torturer’s home State and the territorial State, of the custody, investigations and its further intentions relating to the case and the possible exercise of universal jurisdiction in accordance with Article 6(3) and (4). D e territorial State, the home State of the suspected torturer and other States parties are required by Article 9 to pro-vide judicial assistance, including supply of all evidence at their disposal. D e

¹⁷⁵ No. 181/2001, §§ 7.12 and 7.14.¹⁷⁶ Ibid, §§ 8.2, 8.5 and 8.7.¹⁷⁷ A/51/44, § 114.¹⁷⁸ No. 181/2001, § 9.5. Senegal had ratifi ed the Convention on 21 August 1986, and the

Committee adopted its decision on 17 May 2006, almost 20 years later. See above, 3.2.2.



Zardad case¹⁷⁹ provides a best practice example of active cooperation between British prosecution offi cials and the authorities of Afghanistan, the United States and other countries. If any of these States requests extradition, the rele-vant authorities of the State where the alleged torturer is present must take a decision whether to extradite or to prosecute him or her ‘in the same man-ner as in the case of any ordinary off ence of a serious nature under the law of that State’, as required by Article 7(2). If the authorities of the forum State opt for extradition, they must comply with the relevant provisions in Article 8, with the principle of non-refoulement in Article 3 and ensure, at the same time, that the State requesting extradition is not shielding the alleged torturer against proper criminal prosecution and punishment in accordance with the letter and spirit of Articles 4 and 5. If they opt for prosecution, they must ensure that the standards of evidence required for prosecution and conviction are not less stringent than those which apply under jurisdiction exercised on the basis of the territoriality or nationality principles, as stated explicitly in Article 7(2). In other words, if the prosecuting authorities, after having carried out the necessary investigations, arrive at the conclusion that the evidence provided by the victims, by other States, inter-governmental or non-governmental organi-zations is not suffi cient to justify a formal prosecution, they may, of course, close the proceedings as the principle of universal jurisdiction does not necessarily require a formal prosecution or even conviction and punishment of the alleged torturer. On the contrary, the suspect must be assisted in communicating with the nearest embassy or consulate of his or her home State, as provided for in Article 6(3), and, by virtue of Article 7(3) ‘shall be guaranteed fair treatment at all stages of the proceedings’.

7. Immunity

171 How to strike a fair balance between the obligation of States to avoid safe havens for perpetrators of international crimes and gross human rights viola-tions, such as torture, on the one hand, and the principle of immunity for heads of State and other high-level government offi cials and diplomats on the other hand, is one of the most diffi cult and controversial issues of present international law.¹⁸⁰ As Rosalyn Higgins, Peter Kooijmans and = omas Buergenthal stressed in their well-known concurring opinion to the ICJ judgment in Congo v. Belgium,

¹⁷⁹ See above, 4.9.¹⁸⁰ For the rich literature on this topic see e.g. Cassese, (2002) 13 EJIL 853–875; Gaeta, (2003)

1 JICJ 186–196; Bassiouni, (2001) 42 VJIL 81; Dinstein, (1966) 15 ICLQ 76, 80.


Article 7. Aut Dedere aut Iudicare 359

applicants submitted their complaint in January 2000. Yet by its decision of 20 March 2001, which is not subject to appeal, the Court of Cassation put an end to any possibility of prosecuting Hissène Habré in Senegal.

54 Consequently and notwithstanding the time that had elapsed since the initial submission of the complaint, the Committee was of the opinion that the State party had not fulfi lled its obligations under Article 7 CAT.

55 Moreover, the Committee found that, since 19 September 2005, the State party had been in another situation covered under Article 7, because on that date Belgium had made a formal extradition request. At that time, the State party had the choice of proceeding with extradition if it decided not to submit the case to its own judicial authorities for the purpose of prosecuting Hissène Habré.

56 * e Committee considered that, by refusing to comply with the extra-dition request, the State party had again failed to perform its obligations under Article 7 CAT.

57 In fi nding a violation of Article 7 by Senegal, the Committee noted that the State party was obliged under that provision to submit the case to its com-petent authorities for the purpose of prosecution or, failing that, since Belgium has made an extradition request, to comply with that request, or, should the case arise, with any other extradition request made by another State, in accord-ance with the Convention.


4.1 Obligation to Prosecute Combined with Authorization to Extradite

58 Article 7 is closely linked to Articles 5 and 6, which is underlined by the drafting history.³² Article 5 establishes an obligation of States parties to exercise jurisdiction over the crime of torture on various grounds, including universal jurisdiction. Article 6 requires any State party, where an alleged tor-turer is present (hereinafter referred to as the forum State), to ensure his or her presence, usually by means of arrest and detention, and to inform other relevant States for the purpose of enabling them, if they so wish, to make an extradition request. Article 7 establishes an obligation of the forum State to submit the case to its competent authorities for the purpose of prosecution,

³² See above, Art. 5, 2.2. On the travaux préparatoires of Art. 7 see also above, 2, and Boulesbaa, 208 et seq.



provided that it does not extradite the person concerned. Since Article 5 does not establish any order of priority among the various grounds of jurisdiction,³³ there exists no obligation of the forum State to extradite the alleged torturer to a State with a ‘better’ jurisdiction.³⁴

59 But the forum State is under an obligation to proceed to prosecution. * e choice between prosecution and extradition (aut dedere aut iudicare) is, there-fore, an uneven choice. While the forum State may extradite an alleged tor-turer to another State, provided that another State has requested his or her extradition and that such extradition is permissible under international law, the forum State must proceed to prosecution if it does not extradite the person concerned. Prosecution is not subject to any condition other than the presence of the alleged torturer on the territory.³⁵ In particular, prosecution is not depend-ent on any extradition request having been made by another State and having been rejected by the forum State.³⁶

60 * is interpretation was confi rmed by the Committee against Torture in the Habré case. After noting that ‘the obligation to prosecute the alleged per-petrator of acts of torture does not depend on the prior existence of a request for his extradition’, the Committee stated that the alternative available to the State party under Article 7 ‘exists only when a request for extradition has been made and puts the State party in the position of having to choose between (a) proceeding with extradition or (b) submitting the case to its own judicial authorities for the institution of criminal proceedings, the objective of the provision being to prevent any act of torture from going unpunished’.³⁷

³³ An Italian proposal to establish an order of priority among the diff erent grounds of juris-diction, with the territoriality principle at the top and universal jurisdiction at the bottom, was rejected. A similar proposal was made by the Chinese delegation during the fi nal stage of drafting of Arts. 5 and 7. See E/CN.4/1314/Add.4 and above, Art. 5, paras. 29, 52, 158.

³⁴ Art. 7 is based on the model of Art. 7 of the Hague Hijacking Convention which also merely facilitates extradition. A duty to extradite was regarded generally as an undue interference with the sovereignty of States: cf. Boulesbaa, 218 with further references.

³⁵ In relation to universal jurisdiction, Cassese (International Criminal Law, 285 et seq.) calls this requirement (the so-called forum deprehensionis) the narrow notion of conditional universal jur-isdiction, in contrast to the broad notion of absolute universal jurisdiction (ibid, 286 et seq.), which is exercised on the premise of the failure of the territorial or national State to take proceedings and which may also lead to criminal proceedings in absentia.

³⁶ During the drafting of Art. 5, a number of States proposed this condition for the exercise of universal jurisdiction: see above, Art. 5, paras. 4, 29, 33, 34, 37, 39, 45, 52, 158, 160.

³⁷ Guengueng et al. v. Senegal, No. 181/2001, § 9.7. For the facts of the case see above, Art.5, 3.2.2, 4.1.



the competent authorities. Yet the Habré case constitutes an infamous example of the attempts of a State’s prosecuting and judicial authorities to obstruct the proper implementation of its obligations under the Convention to bring a sus-pected torturer to justice. * e fi nding of a violation of Article 7, therefore, fully corresponds to the letter, spirit and purpose of Article 7, namely to avoid safe havens for torturers.

4.3 Authorization of the Forum State under Article 7(1) to Extradite an Alleged Torturer

65 If the forum State receives an extradition request from another State, it has the choice between extradition and prosecution. Extradition is, however, only permissible if it is done in accordance with international law. Extradition as a form of mutual judicial assistance is usually regulated by bilateral or multilateral extradition treaties. In order to facilitate the extradition of sus-pected perpetrators of torture, Article 8 contains diff erent provisions, such as the assumption that torture is included as an extraditable off ence in existing extradition treaties between States parties and that the Convention shall be considered as the legal basis for extradition in the absence of a respective extra-dition treaty.⁴⁴

66 But extradition must also comply with the prohibition of refoulement under Article 3 CAT. Consequently, if there are substantial grounds for believ-ing that the suspected torturer, if extradited to one of the States exercising jurisdiction in accordance with Article 5(1), would be in danger of being sub-jected to torture, extradition would be absolutely prohibited.⁴⁵ States parties to the CCPR or respective regional human rights treaties would also have to take into account the prohibition to extradite a person to a State in which there is a substantial risk of being subjected to other forms of cruel, inhuman or degrading treatment or punishment.⁴⁶ In addition, under the ruling of the Human Rights Committee in Judge v. Canada, a forum State that has abol-ished the death penalty would not be allowed to extradite a suspected torturer to a State where he or she would be in danger of being sentenced to death and/or executed.⁴⁷ Other limitations on extradition can be derived from the right of the accused to privacy and family life as stipulated in Article 17 CCPR,⁴⁸

⁴⁴ See below, Art. 8.⁴⁵ See above, Art. 3, paras. 50–51, 76–77. ⁴⁶ Cf. Nowak, CCPR Commentary, 185 et seq.⁴⁷ No. 829/1998; cf. Nowak, CCPR Commentary, 151 et seq.⁴⁸ Cf. Nowak, CCPR-Commentary, 395 et seq.



from the right of fair trial as stipulated in Article 14 CCPR and Article 7(3) CAT, from procedural safeguards contained in Article 13 CCPR or from spe-cifi c provisions restricting extradition in the respective bilateral and multilat-eral extradition treaties. Finally, the very purpose of Article 7, namely to avoid safe havens for torturers, requires that the forum State shall not extradite a sus-pected torturer to another State, above all the territorial State or the national State, that obviously misuses an extradition request for the purpose of shield-ing the suspected torturer against proper criminal prosecution.

67 As stated above, Article 7(1) merely authorizes the forum State to choose extradition above prosecution, but it does not establish any obligation to extra-dite. Such an obligation would have had to be inserted in the Convention if an order of priority among the diff erent grounds of jurisdiction in Article 5 had been established. If the territorial or a national State had priority over a forum State wishing to exercise universal jurisdiction, it would have been necessary to oblige the forum State exercising universal jurisdiction, upon request of the territorial or national State, to extradite the suspected torturer. * e reluctance of States to accept any binding obligations to extradite alleged torturers to another State can easily be explained by the far-reaching inter-ference of such an obligation with State sovereignty.⁴⁹ States simply do not wish to fi nd themselves bound to extradite alleged off enders to other States which they may fundamentally distrust.⁵⁰ For example, during the debate in the International Civil Aviation Organization Diplomatic Conference on the drafting of the Hague Convention, numerous representatives expressed their disapproval with proposals for a provision in the Convention which sought to require an extradition treaty between themselves and other States as a con-dition for extradition. Concern was expressed that this proposed language would have the eff ect of binding States to unwanted extradition relationships with specifi c States with which they did not wish to deal.⁵¹

68 * e absence of any obligation to extradite under Article 7 does not mean, however, that the forum State should not seriously consider any genuine extradition request from another State. For the purpose of gathering evidence, the territorial State is usually in a better position to carry out eff ective criminal proceedings than a State that exercises universal jurisdiction. In many cases, the State of which the suspected torturer is a national might be in the best pos-ition to bring him or her to justice. But there might as well exist good reasons

⁴⁹ Cf. Boulesbaa, 218.⁵⁰ Cf. Joseph L. Lambert, 192. ⁵¹ See International Civil Aviation Organization Doc. 8979-LC/165–1, 129, 182 (1972).



for not extraditing the person concerned to these States, which the forum State shall take into account when taking a decision in accordance with Article 7.

69 In the Habré case, the Committee against Torture found a violation of Article 7 on two diff erent grounds. First, Senegal did not fulfi l its obligations under Article 7 because the Court of Cassation in March 2001 put an end to any possibility of prosecuting Hissène Habré in Senegal and, thereby, violated the State party’s obligation to prosecute.⁵² Secondly, after Belgium made a formal extradition request in September 2005, presumably on the basis of the passive nationality principle stipulated in Article 5(1)(c), the Committee also considered this alternative solution and found that, ‘by refusing to com-ply with the extradition request, the State party has again failed to perform its obligations under article 7 of the Convention’.⁵³ At fi rst sight, this hold-ing seems surprising as it indicates an obligation to comply with a particular extradition request. But it needs to be understood in the overall context of the case and the Committee’s decision. * e Committee did not fi nd an obligation to extradite per se, but an obligation to take a decision in accordance with the principle aut dedere aut iudicare in Article 7 aimed at bringing Hissène Habré to justice, either before its own courts or by extraditing him to Belgium. In other words, if the forum State, on the basis of its domestic laws, is not in a position to prosecute a suspected torturer, the choice between extradition and prosecution turns into a legal obligation to extradite, provided that such extra-dition is in accordance with international law.

4.4 Procedural Safeguards under Article 7(2) in Case of Prosecution

70 During the discussion of drafting the principle of universal jurisdic-tion under Article 5(2), many States expressed the concern that this particu-lar ground might be exploited for political reasons, could result in trials on the basis of spurious accusations and fabricated evidence and lead to frictions between States.⁵⁴ * ese States gradually gave up their objections to the prin-ciple of universal jurisdiction only after certain procedural safeguards were inserted into Article 7 which shall prevent such misuse.

71 * e wording of the fi rst sentence of Article 7(2) was fi rst suggested by the UK delegation and was already included in the revised Swedish draft. It applies to all grounds of jurisdiction and requires the authorities of the forum

⁵² Guengueng et al. v. Senegal, No. 181/2001, §§ 9.8 and 9.9: see above, 3.2.1.⁵³ Ibid, § 9.11.⁵⁴ See above, para. 32 and Art. 5, paras. 37, 38, 159.



State to take their decision, whether to extradite or to prosecute, ‘in the same manner as in the case of any ordinary off ence of a serious nature under the law of that State’. * is simply means that the normal procedures relating to serious off ences, both in the extradition and criminal proceedings, and the normal standards of evidence shall apply.⁵⁵

72 * e second sentence of Article 7(2) only applies to the exercise of univer-sal jurisdiction by the forum State and requires that the ‘standards of evidence required for prosecution and conviction shall in no way be less stringent’ than those which apply for prosecutions in the territorial or national State. * is for-mulation goes back to a compromise proposal of the Chairman-Rapporteur after long discussions and gradually opened the way for a fi nal consensus. His proposal also convinced certain States advocating that the exercise of univer-sal jurisdiction should be dependent on the rejection of an explicit extradition request to withdraw their respective amendments and, therefore, avoided a considerable weakening of the eff ectiveness of the Convention.⁵⁶ * e second sentence shall ensure that suspected torturers must not be prosecuted or con-victed by exercising universal jurisdiction on the basis of insuffi cient or inad-equate evidence. If the evidence is insuffi cient, the forum State shall apply to the territorial or national State pursuant to Article 9(1) to supply all evidence at their disposal necessary for the proceedings. If these States are not able or willing to supply the necessary evidence, the forum State shall reconsider its decision to prosecute and choose, as far as possible, the option of extradition to these States. It may even delay the proceedings for a reasonable time in order to negotiate a proper solution with the other State(s) concerned. If these eff orts fail as well, the strict procedural standards of Article 7(2) might even require the forum State to stop the criminal proceedings and to release the suspected torturer under the principle in dubio pro reo.

4.5 Right of the Alleged Torturer to Fair Treatment under Article 7(3)

73 * e obligation of States parties to guarantee to the alleged torturer ‘fair treatment at all stages of the proceedings’ appeared fi rst as Article 6(5) in the revised Swedish draft.⁵⁷ In 1981, the Working Group decided to transfer this provision to Article 7. While an amendment of the Netherlands submitted in

⁵⁵ Cf. Burgers/Danelius, 138.⁵⁶ Ibid, 137.⁵⁷ See above, Art. 6, 2.1.



1981 referred in this context to all ‘guarantees of a fair and equitable trial’,⁵⁸ the Swedish draft and the fi nal version of Article 7(3) are broader and cover all stages of the proceedings. * is means that the right of the alleged torturer to fair treatment starts at his or her arrest which, in accordance with Article 6(1), might be replaced by less intrusive measures to ensure his or her presence, and continues through all stages of criminal investigations up to the extradi-tion proceedings and/or the criminal trial. During interrogation, the alleged torturer, of course, should not be subjected to any torture, cruel, inhuman or degrading treatment. During custody, he or she must enjoy the right to habeas corpus and other minimum rights of persons deprived of liberty as stipulated in Article 9 CCPR. During the extradition procedure, he or she has the right under Article 13 CCPR to be allowed to submit the reasons against such extra-dition and to enjoy all other procedural rights stipulated in bilateral or multi-lateral extradition treaties. In particular, he or she shall not be extradited to a country where there exists a serious risk of torture or ill-treatment. In deciding whether to extradite or prosecute, the forum State shall also take into account whether the accused will enjoy a fair trial in the State which requested his or her extradition. Finally, during the criminal trial, the suspected torturer must enjoy all the guarantees of a fair trial as stipulated in Article 14 CCPR. In the State reporting procedure, the Committee focused primarily on fair treatment guarantees of suspected torturers.⁵⁹

⁵⁸ UN Doc. E/CN.4/L.1576.⁵⁹ See above, 3.1.


Article 12. Ex Offi cio Investigations 431


4.1 Meaning of ‘reasonable ground to believe’49 As was stated above,⁵⁶ there are ample opportunities to fi nd a ‘reason-

able ground’ to believe that an act of torture or cruel, inhuman or degrading treatment has been committed. Apart from a complaint by the victim, a fellow detainee might have witnessed or even only heard of a torture practice, lawyers, doctors, nurses or family members of detainees, NGOs or national human rights commissions might be invited to report frankly about every single case of torture or cruel, inhuman or degrading treatment which was brought to their attention. = e most effi cient way to fi nd out whether and to what extent torture and cruel, inhuman or degrading treatment is practised in any given country is to ratify the OP, establish a truly independent national preventive mechanism (NPM) which regularly carries out unannounced visits to every place of detention and which conducts private interviews with detainees, and to request this body either to investigate on its own every single allegation of torture and cruel, inhuman or degrading treatment or to bring such allega-tions to another independent authority competent to proceed to a prompt and impartial investigation. A government genuinely interested in knowing the truth might also open up its detention facilities to unannounced visits by com-petent NGOs or invite the UN Special Rapporteur on Torture to carry out a fact fi nding mission in full compliance with his terms of reference.

50 @ e main diff erence between Articles 13 and 12 is that the latter shifts the responsibility to initiate an investigation from the victim to the State authorities most directly involved. Since torture and cruel, inhuman or degrading treat-ment usually takes place behind closed doors without any outside witnesses, and since the victims are often too afraid to complain offi cially about such practices, the heads of police stations, interrogation offi ces, pre-trial detention facilities and prisons have a particular responsibility to prevent torture. One of the most effi cient ways to prevent torture is actively to monitor and investigate the situation in the respective detention facility and to take the necessary dis-ciplinary or other action in every single case of ill-treatment or excessive use of force. If torture occurs in a given detention facility, and its head is not aware of such practices or fails to take the necessary preventive measures, he or she might be held accountable for committing the crime of torture by consent or acquiescence.

⁵⁶ See above, 1.



51 One of the most eff ective measures to prevent torture and cruel, inhu-man or degrading treatment is a thorough and independent medical examina-tion of every detainee when arriving at a particular detention facility, when leaving this facility and at any other time, in particular at his or her own request. If a person arrives healthy at a police station and leaves the same police station two days later with certain bruises or injuries, this is a ‘reasonable ground’ to believe that an act of torture or cruel, inhuman or degrading treat-ment has been committed and the burden of proof shifts to the police offi cers responsible for the detention and interrogation.⁵⁷ Whether the injuries were self-infl icted or the result of a legitimate use of force by the respective police offi cers or the result of ill-treatment needs to be established by a prompt and impartial investigation before an independent body.

52 Often, detainees do not dare to report torture and ill-treatment while being held at the place where this treatment occurred. As soon as they are transferred from the police or criminal investigation station to a pre-trial detention centre, they might wish to lodge a complaint. For a torture victim to speak about his or her traumatic experience it is necessary to create conditions where the victim feels safe from reprisals and trustful that his or her allegations are taken seriously. Again, the best person to talk to might be the doctor who carries out a medical examination upon arrival.⁵⁸ Not surprisingly, torture victims do not immediately start to speak openly. Often, the initiative must come from the doctor. When detecting a recent scar or injury during a routine examination, it is up to the doctor to ask where the scar or injury came from. If the explanation given by the detainee is not convincing, there is ‘reasonable ground’ to proceed to a more thorough investigation.

53 = e Committee repeatedly stressed the obligation of States parties to investigate detailed allegations from national and international NGOs⁵⁹ and the fact that the decision on whether to conduct an investigation is not discre-tionary.⁶⁰ If there are reasonable grounds, an investigation must be instigated regardless of the origin of suspicion.⁶¹ In the leading case of Blanco Abad v. Spain,⁶² the Committee found a violation of Article 12 on the ground that the High Court had not started an investigation despite having before it fi ve

⁵⁷ See also the European Court of Human Rights case of Ribitsch v. Austria (1996) 21 EHRR 573.

⁵⁸ See also the facts in Blanco Abad v. Spain, Comm. No. 59/1996. See above, 3.2.⁵⁹ See e.g. A/57/44, § 5(i) and the facts in M’Barek v. Tunisia, No. 60/1996, above, 3.2.⁶⁰ See e.g. CAT/C/SR.145, §10 and SR.168, § 40. See also the concluding observations on the

third periodic report of France, CAT/C/FRA/CO/3, § 20.⁶¹ No. 59/1996, § 8.2. See above, 3.2⁶² Ibid, § 8.2. See above, 3.2.


Article 12. Ex Offi cio Investigations 433

reports of a forensic physician which noted that she had ‘complained of hav-ing been subjected to ill-treatment consisting of insults, threats and blows, of having been kept hooded for many hours and of having been forced to remain naked, although she displayed no signs of violence. = e Committee considers that these elements should have suffi ced for the initiation of an investigation, which did not however take place.’⁶³ In the Roma pogrom case of Dzemajl et al. v. Yugoslavia, the Committee found a violation of Article 12 on the ground that, despite the presence of a number of police offi cers both at the time and at the scene of the pogrom, no proper investigations had been initiated and no person nor any member of the police forces had been tried by the courts.⁶⁴ In @ abti v. Tunisia, the Committee confi rmed its earlier jurisprudence and noted that Article 12 places an obligation on the authori-ties to ‘proceed automatically’ to a prompt and impartial investigation whenever there are reasonable grounds to believe that an act of torture or ill-treatment has been committed, ‘no special importance being attached to the grounds for suspicion’.⁶⁵

54 In its concluding observations after having examined the second peri-odic report of the United States, the Committee in May 2006 interpreted the provision of Article 12 to require the US authorities ‘to promptly, thoroughly and impartially investigate any responsibility of senior military and civilian offi cials authorizing, acquiescing or consenting in any way, to acts of torture committed by their subordinates’.⁶⁶ Since most of the controversial interro-gation methods used in Guantánamo Bay, Abu Ghraib and similar detention centres for suspected terrorists were explicitly authorized by Defense Secretary Donald Rumsfeld,⁶⁷ it seems evident that his particular responsibility should be subject of such an independent investigation required by Article 12.

4.2 Meaning of ‘prompt investigation’55 In the case of a suspicion of torture or ill-treatment, a prompt investiga-

tion is of particular importance. First of all, the victim might be in danger of further torture. A prompt offi cial investigation by the head of the respective detention centre or an external monitoring body might prevent further torture, above all as a means of reprisal. Secondly, the physical traces of torture and ill-

⁶³ Ibid, § 8.3.⁶⁴ No. 161/2000, § 9.4. See above, 3.2.⁶⁵ No. 187/2001, § 10.4. See above, 3.2.⁶⁶ CAT/C/USA/CO/2, § 19.⁶⁷ See e.g. the report of fi ve special procedures on the situation of detainees at Guantánamo Bay

detention facilities, E/CN.4/2006/120; see also Nowak, (2006) 28(4) HRQ 809–841.



treatment, if any, might soon disappear.⁶⁸ = e obligation under Article 12 to proceed to a prompt investigation, therefore, means that as soon as there is a suspicion of a case of torture or ill-treatment, investigations shall be initiated immediately or without any delay, i.e. within the next hours or days.⁶⁹

56 In most cases in which the Committee found a violation of Article 12, no investigations had been carried out at all or only after long periods. In Halimi-Nedyibi v. Austria, the Committee found that a delay of 15 months before any investigation into the allegations of torture and ill-treatment had started was ‘unreasonably long’ and therefore a violation of the requirement of a prompt investigation as laid down in Article 12.⁷⁰ In M’Barek v. Tunisia, it held that a delay of over ten months ‘after the foreign non-governmental organization had raised the alarm and over two months after the Driss Commission’s report’ was excessive and, therefore constituted a violation of Article 12.⁷¹

57 = e only case in which a considerably shorter period of delay, namely some two weeks, was held to constitute a violation of Article 12, is the well-known case of Blanco Abad v. Spain which concerns ill-treatment by offi cers of the Guardia Civil between 29 January and 2 February 1992, where the complainant had been kept incommunicado under anti-terrorist legislation.⁷² Signs of her ill-treatment were noticed by a doctor at a Women’s Penitentiary Centre who had examined her upon arrival on 3 February 1992. = e prison director, in complying with the relevant obligations under Articles 12 and 13, immediately brought the physician’s report to the attention of the competent judge. = e Committee observed that ‘when, on 3 February, the physician of the penitentiary centre noted bruises and contusions on the author’s body, this fact was brought to the attention of the judicial authorities. However, the com-petent judge did not take up the matter until 17 February and Court No. 44 initiated preliminary proceedings only on 21 February.’⁷³ = is delay was held to be ‘incompatible with the obligation to proceed to a prompt investigation, as provided for in article 12 of the Convention’.⁷⁴ = is fi nding clearly confi rms the interpretation that a prompt investigation, in order to be eff ective, must be initiated within hours or, at the most, a few days after the suspicion of torture or ill-treatment has arisen.

⁶⁸ Cf. Wendland, 52.⁶⁹ = is corresponds also to the meaning of ‘promptly’ in Arts. 9 and 14 CCPR: cf. Nowak,

CCPR-Commentary, 210–240, 302–357.⁷⁰ No. 8/1991, § 15. See above, 3.2.⁷¹ No. 60/1996, §§ 11.5–11.7. See above, 3.2.⁷² No. 59/1996; see above, 3.2.⁷³ Ibid, § 8.4. ⁷⁴ Ibid, § 8.5.



in this instance in interpreting the requirements of promptness and imparti-ality under Article 13.²⁸

4. Issues of interpretation

4.1 Right of Victims of Torture and Ill-Treatment to Complain to a Competent Authority

27 5 e formulation of Article 13 indicates that any individual who alleges that he or she has been subjected to torture (or ill-treatment) has an independ-ent right to complain to a competent authority. A mere allegation of torture or ill-treatment should, therefore, suffi ce, i.e. the form of the complaint is not important.²⁹ In the early case of Parot v. Spain, the Committee noted that ‘in principle, article 13 of the Convention does not require the formal submission of a complaint of torture. It is suffi cient for torture only to have been alleged by the victim for the state to be under an obligation promptly and impartially to examine the allegation.’³⁰

28 5 is interpretation was further elaborated in the leading case of Blanco Abad v. Spain, in which the Committee stated as follows: ‘5 e Committee observes that article 13 of the Convention does not require either the formal lodging of a complaint of torture under the procedure laid down in national law or an express statement of intent to institute and sustain a criminal action arising from the off ence, and that it is enough for the victim simply to bring the facts to the attention of an authority of the State for the latter to be obliged to consider it as tacit but unequivocal expression of the victim’s wish that the facts should be promptly and impartially investigated, as prescribed by this provi-sion of the Convention’.³¹ 5 is liberal interpretation, which clearly conforms to the object and purpose of this provision, was confi rmed in later cases against Tunisia³² and Serbia and Montenegro.³³

29 In the State reporting procedure, the Committee expressed concern about undue restrictions of the right to complain.³⁴ In its concluding obser-vations on the third periodic report of France, it criticized, for example, the

²⁸ See above, Art. 12, 3.3.²⁹ Cf. Wendland, 53. ³⁰ No. 6/1990, § 10.4. See above, 3.2 .³¹ No. 59/1996, § 8.6. See above, 3.2.³² Cf. Abdelli v. Tunisia, No. 188/2001, § 10.6; Ltaief v. Tunisia, No. 189/2001, § 10.6. See

above, 3.2 and above, Art 12, 3.2.³³ Cf. Dimitrov v. Serbia and Montenegro, No. 171/2000, § 7.2. See above, 3.2.³⁴ See above, 3.1. See also Ingelse, 367.


Article 13. Right of Victims to Complain 449

limited access to the National Commission on Security Ethics.³⁵ In relation to Nepal, it found the statute of limitation of 35 days for complaining about acts of torture under the Torture Act of 1996 as inconsistent with the guarantees provided for in Article 13.³⁶ In general, the right to lodge a complaint and the corresponding State obligation to carry out a prompt and impartial investiga-tion should not be dependent on any discretion of State authorities.³⁷

30 It follows that States must provide the necessary procedures for victims of torture and ill-treatment to exercise their right to complain in a non-bureaucratic manner without fear of reprisals. Particular measures need to be taken in rela-tion to detainees. In places of detention, there should be the possibility to lodge both oral and written, ideally even anonymous, complaints which need to be forwarded by the detention authorities to the competent investigation body.³⁸ In principle, every person working in a detention facility has the obligation to forward a complaint to a competent authority. Unless a special proced-ure has been established to receive such complaints, doctors who carry out medical examinations in a detention facility might be the persons to whom detainees prefer to complain. Other possible addressees of such complaints might be prison chaplains, social workers, resident prosecutors and other bod-ies entrusted to monitor conditions in detention and/or carrying out prison inspections.

31 Detainees should also be informed about their right to complain about torture and ill-treatment and about the respective procedures available to them. Other rights of detainees, such as prompt access to family members, counsel and a doctor of their choice, as well as the right to lodge a writ of habeas corpus to an independent judge facilitate the exercise of the right to complain about torture and ill-treatment.³⁹

4.2 Obligation of States Parties to Proceed to a Prompt and Impartial Investigation

32 While ex offi cio investigations under Article 12 depend on the existence of a ‘reasonable ground to believe’ that an act of torture or ill-treatment has

³⁵ CAT/C/FRAU/CO/3, § 22.³⁶ CAT/C/NPL/CO/2, § 28. Cf. also the obiter dictum in the Argentine Punto Final cases, Nos. 1,

2 and 3/1988, § 9: ‘5 e Committee observes, however, that even if the Convention against Torture does not apply to the facts of these communications, the State of Argentina is morally bound to pro-vide a remedy to victims of torture and to their dependants’. See also below, Art.14, 3.2.

³⁷ Cf. Ingelse, 367.³⁸ Cf. Burgers/Danelius, 145.³⁹ See also A/56/44, § 82(c).



been committed, the duty to investigate under Article 13 is triggered by the mere allegation by a victim.⁴⁰ 5 is does, of course, not preclude the quick clos-ure of such an investigation if it appears, on the basis of reliable facts, that the complaint is fabricated or clearly unfounded.⁴¹ But, as a minimum, the com-petent authorities shall hear the complainant and enable a doctor to examine him or her.⁴²

33 All complaints about torture shall be investigated promptly and impar-tially by competent authorities. Since the standards of such investigations seem to be the same as under Article 12, reference may be made to the relevant chapters.⁴³

4.3 Obligation of States Parties to Protect Complainants and Witnesses against Reprisals

34 Since both victims and witnesses of an act of torture or ill-treatment are often afraid to complain and provide evidence, the right to complain and the corresponding State obligation to investigate necessarily imply the obligation of States to protect complainants and witnesses against such reprisals. 5 is is particularly important for detainees. 5 e original Swedish draft had contained the phrase ‘without threat of further torture or other cruel, inhuman or degrad-ing treatment or punishment’. Despite the proposal by Austria and Denmark to delete this phrase, it was strengthened in the revised Swedish draft by a separate sentence requiring States parties to protect the complainant against ‘ill-treatment in consequence of his complaint’. During the discussions in the Working Group in 1980 this sentence was further strengthened by also includ-ing the protection of witnesses against ill-treatment and intimidation.⁴⁴

35 Article 13 requires that ‘steps shall be taken’ by States parties to ensure victim and witness protection without further elaborating on such steps. In the case of detainees (both victims and witnesses) one might think of removing them to another place of detention or at least of a change of personnel respon-sible for them.⁴⁵ Another step might be to suspend the accused offi cials from duty, to assign special personnel to victims and witnesses or to arrange for regular examinations by doctors. In general, if prison directors, police chiefs

⁴⁰ See Ingelse, 367 with references to the practice of the Committee.⁴¹ See Burgers/Danelius, 145.⁴² Cf. also Ingelse, 367 and CAT/C/SR.203, § 38.⁴³ See above, Art. 12, 4.2, 4.3 and 4.4.⁴⁴ See above, 2.⁴⁵ See Burgers/Danelius, 146; Wendland, 53.


Article 13. Right of Victims to Complain 451

and other government authorities seem to be clear about fi ghting impunity and taking torture complaints seriously then the risk of reprisal is also smaller.

36 In its concluding observations after the examination of the fourth peri-odic report of Peru, the Committee recommended that the Government of Peru should investigate all reports of intimidation of witnesses and set up an appropriate mechanism to protect witnesses and victims.⁴⁶ 5 e ICTY, ICTR and ICC have developed extensive programmes for the protection of victims and witnesses which may be used as a model for States in order to protect victims and witnesses of torture, inside and outside detention, against ill-treatment and intimidation.⁴⁷ For instance, according to Article 43(6) of the Rome Statute of the ICC:

5 e Registrar shall set up a Victims and Witnesses Unit within the Registry. 5 is Unit shall provide, in consultation with the Offi ce of the Prosecutor, protective meas-ures and security arrangements, counselling and other appropriate assistance for wit-nesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses. 5 e Unit shall include staff with expertise in trauma, including trauma related to crimes of sexual violence.

⁴⁶ CAT/C/PER/CO/4, § 20; see also CAT/C/LKA/CO/2, § 15.⁴⁷ See e.g. Art. 22 ICTY Statute and Rules 69 and 75 of the Tribunal’s Rules of Procedure and

Evidence. See also Rule 34 ICTR RoP and Art 43(6) of the Rome Statute.


Article 14. Right of Torture Victims to Adequate Reparation 481


4.1 Meaning of the Terms Redress, Compensation, and Rehabilitation

72 Article 11 of the 1975 Declaration and the IAPL draft used the terms ‘redress’ and ‘compensation’, the original Swedish draft only ‘compensation’.¹⁰⁰ During the discussions in the Working Group, many delegations stressed that the right to compensation should be ‘as comprehensive as possible’.¹⁰¹ In the course of the discussions, the right to ‘fair and adequate’ compensation was added, and since ‘one-time monetary compensation might not suffi ce’, it was agreed to add the words ‘including the means for as full rehabilitation as possible’.¹⁰² First, it was proposed to make a reference to the 1979 General Assembly Resolution 34/154 on the International Year of Disabled Persons as a guide for the interpretation of the word ‘rehabilitation’, but the majority did not wish to include a non-binding resolution in the text of a binding treaty. It was made clear, however, that rehabilitation encompasses various measures, including social and medical assistance.¹⁰³

73 E is broad understanding is also refl ected in the practice of the Committee, both in the State reporting and the complaints procedure. In the well-known Argentinean Punto Final cases, the Committee observed that the democratic Government of Argentina is ‘morally bound to provide a remedy to victims of torture and to their dependants, notwithstanding the fact that the acts of torture occurred before the entry into force of the Convention’.¹⁰⁴ It urged the Government ‘not to leave the victims of torture and their depend-ants without a remedy. If civil action for compensation is no longer possible because the period of limitations for lodging such an action has run out, the Committee would welcome, in the spirit of article 14 of the Convention, the adoption of appropriate measures to enable adequate compensation.’¹⁰⁵ As an example, the Committee mentioned specifi c pension schemes.¹⁰⁶

74 E e leading case in this respect is Guridi v. Spain, decided in May 2005.¹⁰⁷ E e victim had been tortured by three members of the Spanish Civil

¹⁰⁰ See above, 2.1.¹⁰¹ See e.g. the Austrian comment in E/CN.4/1285.¹⁰² See above, 2.2.¹⁰³ Cf., e.g., the Danish statement in E/CN.4/1984/SR.33, §§ 53 and 54. See also Committee

member Sørensen in the State reporting procedure, above, para. 41. ¹⁰⁴ Nos. 1, 2 and 3/1988, § 9; see above, 3.2.¹⁰⁵ Ibid.¹⁰⁶ Ibid, § 10.¹⁰⁷ No. 212/2002; see above, para. 70 and Art. 4, paras. 43, 54.



Guard in 1992. Although a Spanish criminal court had in 1997 found all three of them guilty and sentenced them to more than four years’ imprisonment and to pay compensation of 500,000 pesetas to the complainant, they were later pardoned by the Government and the King. E e Committee found a violation not only of Articles 2 and 4, but also of Article 14 in spite of the fact that the Civil Guards had paid the compensation to the victim. It justifi ed this hold-ing by considering that ‘compensation should cover all the damages suff ered by the victim, which includes, among other measures, restitution, compen-sation, and rehabilitation of the victim, as well as measures to guarantee the non-repetition of the violations, always bearing in mind the circumstances of each case’.¹⁰⁸

75 E e Committee did not make an explicit reference to the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, which were adopted on 16 December 2005 by the General Assembly after many years of drafting in the Sub-Commission and in the Commission.¹⁰⁹ But the terminology used in this decision corre-sponds broadly to that developed in the Guidelines. E e Guidelines provide a useful tool for interpreting the comprehensive right of victims of torture to a remedy and reparation for the pain and suff ering endured.

76 Although Article 14(1) uses diff erent terminology, it constitutes a spe-cifi c manifestation of the general right of victims of human rights violations to a remedy and adequate reparation, as laid down in Article 2(3) CCPR¹¹⁰ and similar provisions in regional human rights treaties. E e right to a remedy guarantees a procedural and a substantive claim. At the procedural level States commit themselves to establishing suitable, i.e. primarily judicial, institutions to take decisions during a procedure determined by the rule of law in order to enable victims of torture to obtain redress, i.e. adequate reparation. In add-ition to constitutional and special human rights courts, civil and criminal courts may grant a legal remedy, as do ombuds-institutions, national human rights commissions and special torture rehabilitation bodies. It is important that the victims of torture themselves are entitled to initiate such procedures.

77 At the substantive level, the right to a remedy shall provide redress to the torture victim, which means fair and adequate reparation for the pain and humiliation suff ered. What victims perceive as adequate reparation is diff erent

¹⁰⁸ Ibid, § 6.8.¹⁰⁹ GA Res. 60/147 of 16 December 2005.¹¹⁰ Cf. Nowak, CCPR-Commentary, 62 et seq.



in each case and depends on the particular suff ering and on the individual sense of justice.¹¹¹ Usually, victims of torture are not primarily interested in monetary compensation but in other means of reparation which are better suited to restore their dignity and humanity. Often, a full and impartial inves-tigation of the truth and the recognition of the facts, together with an apology by the responsible individuals and authorities seem to provide more satisfac-tion to the victim than monetary compensation.

78 E e van Boven/Bassiouni Guidelines and Principles mentioned above provide for diff erent categories of reparation: restitution does not apply to tor-ture victims as the suff ering infl icted cannot be taken away any more. Since victims of torture often suff er from long-term physical injuries and post trau-matic stress disorders, various types of medical, psychological, social and legal rehabilitation are usually best suited to provide relief. Long term rehabilitation measures, which are often provided by special torture rehabilitation centres, are fairly cost intensive,¹¹² and the respective costs should ideally be borne by the individual perpetrators, their superiors and the authorities directly respon-sible.¹¹³ If States provided eff ective remedies ensuring that the individual per-petrators are held accountable to pay all the costs of long term rehabilitation for torture victims, this would probably have a stronger deterrent eff ect than criminal punishments. Nevertheless, the criminal prosecution of perpetrators is often perceived by torture victims as the most eff ective means of satisfac-tion. Since torture constitutes a particularly serious violation of human rights, justice for the victim deserves appropriate punishment of the perpetrator. In addition, criminal investigations serve the purpose of establishing the truth and, thereby, pave the way for other forms of reparation.¹¹⁴ Guarantees of non-repetition, such as amending relevant laws, fi ghting impunity, taking eff ect-ive preventive or deterrent measures, constitute a proper form of reparation if torture is practised in a widespread or systematic manner. Finally, monetary compensation for the immaterial damage (pain and suff ering) or material dam-age (rehabilitation costs etc.) might provide satisfaction as an additional form of reparation.

¹¹¹ See de Feyter et al. ¹¹² See the report of the Special Rapporteur on Torture to the Human Rights Council of

15 January 2007 in A/HRC/4/33, §§ 61–68.¹¹³ Cf., e.g., the procedures before the Supreme Court of Sri Lanka: M.A.M. Sarjun v. Kamaldeen

(Reserve P.C.) 39753 Police Station, Habarana and two others; Wijenayake and others v. Amerasena and others; Nalika Kumudini (on behalf of Malsha Kumari) v. Nihal Mahinda, O.I.C. Hungama Police and others; Ratnasiri and Another v. Devasurendran, Inspector of Police, Slave Island and others.

¹¹⁴ See below, 4.2.



torture or the respective State and its authorities. Another scope of application of the savings clause in Article 14(2) is the extraterritorial application of the right of torture victims to reparation which we will discuss below.

4.6 Universal Civil Jurisdiction for Torture96 E e Convention contains a number of provisions which explicitly relate

to extraterritorial torture as well as a number which confi ne their operation to torture within the jurisdiction of the State. One of the central questions of interpretation in relation to Article 14 is whether the reference to ‘torture’ refers only to torture for which the forum State itself is responsible, or whether it also includes torture for which another State is responsible, and which took place outside the jurisdiction of the forum State. Could one interpret Article 14 as requiring States parties to provide the same civil right to redress for tor-ture which occurs outside its jurisdiction as it is obliged to provide for torture which is alleged to have occurred within its territorial and other jurisdiction?

97 E e drafting history sheds little light on the question as to whether Article 14 allows for extraterritorial application. E e original Swedish draft contained no express territorial limitation and there was no discussion on the issue in the 1980 Session of the Working Group. A proposal by the Netherlands to insert the words ‘committed in any territory under its jurisdiction’ after the word ‘torture’ in Article 14 was adopted by the Working Group in 1981 and remained in the draft during the 1982 meeting of the Group.¹⁵¹ However, this phrase disappeared from the text and neither the travaux nor the commentary provide any insight as to why it was deleted.¹⁵² On the one hand, it could be argued that removal of the phrase, albeit, undocumented, was intended to make clear that the revised version was not territorially limited.¹⁵³ On the

¹⁵¹ Burgers/Danelius, 74. ¹⁵² See above, para. 15. ¹⁵³ According to Byrnes, States parties were unlikely to agree lightly to making their legal sys-

tems, including legal aid, rehabilitation facilities and compensation funds, available to all comers, and an explicit statement to that eff ect would be expected if such an obligation were to be imposed. Furthermore, he argues that the presence of the savings clause in Article 14(2) ‘would seem to sug-gest that, at most, the drafters did not wish to preclude States from adopting a universal approach to redress such as that found in the United States’ Torture Victim Protection Act (TVPA)’. Byrnes points to the analysis of the provision which accompanied President Reagan’s submission of the CAT to the US Senate in 1988 as well as the US understanding entered to Art. 14 (which had received no objection from other States at the time) as strong evidence of the view that this was merely a mistaken omission. See Byrnes, (2001) 543, note 13. See also David P. Stewart, Assistant Legal Advisor, US Department of State, who testifi ed in 1990 that, during the negotiations on the CAT, a number of States ‘considered the issue of states establishing civil jurisdiction over acts that take place abroad and rejected it’. Torture Victim Protection Act of 1989, Hearing before the



other hand, it could be contended that the territorial limitation was so obvious that it did not need to be spelled out.

98 Neither does an analysis of the practice of the Committee in the State reporting procedure provide a clear answer to the question. Prior to May 2005, the Committee had remained silent when confronted with States’ assertions that the provisions of Article 14 required no more than the provision of redress for domestic torture, and that the provision of redress or rehabilitation to vic-tims of extraterritorial torture remained a matter within their discretion.¹⁵⁴ Where States parties had provided information about the special rehabilita-tion services provided to victims of torture who have come from abroad, the Committee has praised such eff orts, but has not suggested that the States concerned were obligated by Article 14 to provide such services.¹⁵⁵ It was quick to congratulate the United States on the broad legal recourse to com-pensation for victims of torture, whether or not such torture occurred in the United States of America, but with an express reference to Article 14(2).¹⁵⁶ In relation to Canada’s fourth and fi fth periodic reports in May 2005, however, the Committee entered into a dialogue with delegates on the ambit of Article 14 and particularly with regard to the question of State immunity as a bar to a civil suit for torture committed outside the State. E e dialogue took place subsequent to the 2004 decision in Bouzari v. Islamic Republic of Iran,¹⁵⁷ where a Canadian court found that immunity was a bar to a civil suit for tor-ture committed outside the State. While there was no specifi c reference to the case, the Committee, in its concluding observations, highlighted as a matter of concern ‘the absence of eff ective measures to provide civil compensation to victims of torture in all cases’ and recommended that ‘the State party should review its position under article 14 of the Convention to ensure the provision of compensation through its civil jurisdiction to all victims of torture’.¹⁵⁸ While this could provide support for a broader interpretation of Article 14(1), the Committee did not take the opportunity to clarify the position by, for instance, ending its expression of concern with the words ‘wherever or by whomever committed’.

Subcommittee on Immigration and Refugee Aff airs of the Senate Committee on the Judiciary, 101st Congress, 2nd Sess., at 31 (1990).

¹⁵⁴ See e.g. New Zealand, CAT/C/29/Add.4 (1997), §§ 35–40; Germany, CAT/C/29/Add.2 (1997), § 39; United States, CAT/C/28/Add.5 (2000), § 268.

¹⁵⁵ See above, paras. 48–50. ¹⁵⁶ A/55/44, §§ 175–180.¹⁵⁷ 2004 CanLII 871 (Court of Appeal for Ontario).¹⁵⁸ CAT/C/CR/34/CAN, §§ 4(g), 5(f).



99 Based on the above, we would agree with Parlett¹⁵⁹ that Article 14(1), in light of the practice, does not impose an obligation to provide a remedy for torture committed abroad; neither does it prohibit the exercise of jurisdiction with an extraterritorial element.

100 E e inclusion of the savings clause in Article 14(2), according to which remedies under national law remain unaff ected, would seem to indicate that the drafters of the Convention did not wish to preclude States from adopt-ing a universal approach to redress such as that adopted by the United States. E e United States has indeed proved fertile ground for civil suits on torture and other gross human rights violations. Its courts base their jurisdiction on a generous interpretation of continuing eff ects (i.e. the victim continuing to suff er the after-eff ects of torture while in the United States) and on domestic legislation. In the landmark case of Filártiga,¹⁶⁰ the Alien Tort Claims Act 1789 was used to allow an alien to sue another alien for damages in a US court for injuries caused by violations in international law (the torture and murder of a young Paraguayan who was respectively the son and brother of the plaintiff s). E e case was followed by the passing of the Torture Victims Protection Act 1991.

101 A victim wishing to sue under tort law in the United States faces the diffi culty that the defendant must be in the jurisdiction. E ere are many other legal hurdles, even once jurisdiction is established. According to Boyd, about 80 per cent of human rights cases brought under the Alien Tort Claims Act and Torture Victims Protection Act since 1980 have been dismissed on grounds such as forum non conveniens,¹⁶¹ act of State, sovereign immunity and other similar bases.¹⁶²

102 Even more serious obstacles face would-be litigants outside the United States. Ironically, given its readiness to allow civil suits under domestic legis-lation, the United States has been one of the strongest voices in denying that Article 14, which provides for civil remedies, has extraterritorial eff ect. As stated above, Article 14 itself is silent on whether or not it should have extra-territorial application. Looking at the travaux préparatoires, an earlier draft of the Article did expressly deny extraterritorial eff ect, but this qualifi cation was subsequently removed.¹⁶³ On the face of it, the implication seems to be that

¹⁵⁹ Parlett, (2007) 4 EHRLR 385–403¹⁶⁰ Filártiga v. Peña-Irala, 630 F 2d 876 (CA, 2 Cir. 1980).¹⁶¹ Under this doctrine, a court stays civil proceedings on the basis that it would be more appro-

priate to pursue the claim elsewhere.¹⁶² Boyd, (2004) 40 TILJ 1, 1–2. Cited in Donovan/Roberts.¹⁶³ Discussed in Byrnes (2001), 545–546.



permissive universal civil jurisdiction was therefore to be allowed. E e United States has argued that the territorial limitation was excluded due to a mere oversight,¹⁶⁴ and entered a reservation stating that it understood Article 14 to remain subject to territorial limits (despite itself going further than any other State in allowing extraterritorial civil suits). Giving the Convention its plain meaning, however, universal civil jurisdiction is certainly not excluded by the Convention, and Donovan and Roberts¹⁶⁵ make the point that such an applica-tion fi ts the purpose of the Convention, which is to defeat impunity.

103 Given that torture is equally heinous regardless of whether a civil or criminal remedy is in question, allowing universal criminal jurisdiction while denying universal civil jurisdiction is arguably rather illogical. Reydams comments that ‘what applies for criminal jurisdiction applies to some extent mutatis mutandis for civil jurisdiction, because the latter is considered less intrusive’.¹⁶⁶ It is less intrusive for three reasons: (i) in civil cases with an extra-territorial element, the application of foreign law is not excluded; (ii) the host state is merely an adjudicator rather than actor; (iii) the potential consequences for the defendant are less severe, ie. damages rather than imprisonment.¹⁶⁷ By implication, recognizing universal criminal jurisdiction entails recognizing universal civil jurisdiction, as ‘qui peut le plus peut le moins’.¹⁶⁸

104 Foakes argues to the contrary that universal civil jurisdiction is inher-ently more intrusive on State sovereignty than criminal, as there is a more ‘restricted level of public authority input’. E e ‘reduced degree of State control’ may lead to ‘frivolous or politically motivated claims’ and the risk of ‘multiple actions in diff erent jurisdictions’.¹⁶⁹ However, courts already have mecha-nisms to throw out frivolous or vexatious claims and the doctrine of forum non conveniens allows them to dismiss cases more appropriately heard elsewhere, so it is suggested that these concerns can be adequately dealt with.

105 E e European Commission submitted an amicus brief to the US Supreme Court in the Sosa case¹⁷⁰ acknowledging that while its existence and scope remained unclear, universal civil jurisdiction was most appropriately applied in the category of cases already subject to universal criminal jurisdiction,

¹⁶⁴ Ibid, 548.¹⁶⁵ Donovan/Roberts, 148.¹⁶⁶ Reydams, 2. ¹⁶⁷ Ibid, also citing Shelton, 283–284.¹⁶⁸ Ibid.¹⁶⁹ Joanne Foakes, ‘State immunity: an update in light of the Jones case’, Contribution to the

Chatham House International Law discussion group on 21 November 2006, available at <http://www.chathamhouse.org.uk/publications/papers/view/-/id/411, 6>.

¹⁷⁰ Sosa v. Alvarez-Machain, 542 US 692 (2004).



in accordance with the rationale that it was necessary to end impunity for breaches of the most fundamental international norms (which undoubtedly includes torture). E e European Commission also specifi ed that cases should only be permitted where the claimant would otherwise face a denial of justice by being unable to bring the case in another State or before an international tri-bunal.¹⁷¹ In the Sosa judgment, Justice Stephen Breyer commented obiter that universal criminal jurisdiction ‘necessarily contemplates a signifi cant degree of civil tort recovery as well’ given that in many States, victims may attach civil compensation claims to criminal prosecutions. Universal civil jurisdic-tion should not be perceived as any more ‘threatening’ than universal criminal jurisdiction.¹⁷²

106 In drafting a Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters, some States at least were strongly in favour of allowing jurisdiction in respect of ‘a grave violation against a natural person of non-derogable fundamental rights established under international law, such as torture . . .’.¹⁷³ In the accompanying narrative,¹⁷⁴ the drafters argue ‘it is only to be expected that criminal proceedings may be accompanied by civil proceedings initiated by victims to obtain relief from the person responsible for the violation’. An alternative variant restricted the exercise of jurisdiction to cases where the State has established criminal jurisdiction over the relevant crime and where the claim is for civil compensatory damages for death or serious bodily injury arising from that crime.¹⁷⁵ E is Convention ultimately proved too controversial for States to reach agreement, and an agreed version was never fi nalized. Another opportunity was missed recently to clarify the relationship between immunity and international human rights norms in the UN Convention on the Jurisdictional Immunities of States and their Properties, which is silent on the issue.

107 While there is some evidence that Article 14 can be read as allowing per-missive universal civil jurisdiction, it must be acknowledged that, with a very few exceptions, courts have shown marked reluctance to allow such cases.¹⁷⁶ One of the rare examples in which universal civil jurisdiction was allowed is

¹⁷¹ Brief of Amicus Curiae the European Commission at 17–22, Sosa, 542 US 692 (2004). See also Donovan/Roberts, 147.

¹⁷² Sosa, 542 US 692 (2004), 762–763. Quoted in Donovan/Roberts, 148.¹⁷³ Hague Conference on Private International Law, Preliminary Draft Convention on

Jurisdiction and Foreign Judgments in Civil and Commercial Matters, Article 18 (3), Oct. 30, 1999. Prel. Doc. No. 11 (August 2000), at <http://www.hcch.net/upload/wop/jdgmpd11.pdf>.

¹⁷⁴ Ibid, 84.¹⁷⁵ Ibid, 85.¹⁷⁶ See Byrnes (2001), 538.



tion on the basis of control orders passed under the Prevention of Terrorism Act 2005. As Tom Frost commented in January 2006, ‘for all the important words and principles laid down in the judgments, evidence obtained by torture may well still be used in English courtrooms and cases’.¹⁰⁴


5.1 Scope of Application of Article 15: # e Meaning of the Phrase ‘evidence in any proceedings’

75 As has been stated in the Introduction, the rationale behind the the-ory of the ‘tainted fruits of the poisonous tree’ is twofold. Since statements extracted by torture are often unreliable, it would be unfair to use them as evi-dence (in particular, against the accused in criminal proceedings) and would damage the integrity of judicial proceedings. Secondly, to render inadmissible such evidence removes an important reason for using torture and, therefore, has a compelling preventive eff ect.¹⁰⁵ 0 e fi rst reason applies primarily to judi-cial proceedings which, according to Article 14 CCPR, must comply with certain minimum standards of fairness.¹⁰⁶ 0 e second (preventive) reason goes, however, beyond judicial proceedings. In order to prevent torture, its tainted fruits should not be admissible in any proceedings. 0 e IAPL draft explicitly referred to ‘any judicial or administrative proceedings’.¹⁰⁷ Although this explanation was deleted in the fi nal version of Article 15, nothing in the travaux préparatoires suggests that the scope of application of Article 15 was meant to be reduced to judicial proceedings.

76 0 e Committee against Torture has confi rmed this broad scope of appli-cation in its case law. In G.K. v. Switzerland, the Committee observed with reference to earlier fi ndings that ‘the broad scope of the prohibition in article 15, proscribing the invocation of any statement which is established to have been made as a result of torture as evidence “in any proceedings”, is a function of the absolute nature of the prohibition of torture and implies, consequently,

¹⁰⁴ Tom Frost, Legal Commentary on the Use of Torture Evidence, CAMPACC January 2006, at 15, <http://www.campacc.org.uk/Library/legal_commentary_torture_evidence_220106.pdf>.

¹⁰⁵ See e.g. Burgers/Danelius, 148.¹⁰⁶ Burgers/Danelius, at 148, seem indeed to reduce the scope of application of Art. 15 CAT

to judicial proceedings. 0 e December 2005 judgment of the House of Lords also examined the meaning of Art. 15 solely in the context of judicial proceedings. Nevertheless, Lord Bingham clearly stated that this rule ‘applies to all proceedings’: [2005] UKHL 71, [35]. See also the distinction made by Lord Nicholls, ibid, [67]–[77].

¹⁰⁷ See above, 2.1.


Article 15. Non-Admissibility of Evidence Extracted by Torture 531

an obligation for each State party to ascertain whether or not statements admitted as evidence in any proceedings for which it has jurisdiction, includ-ing extradition proceedings, have been made as a result of torture’.¹⁰⁸

77 In the context of the current debate on the legitimacy of the use of tor-ture or its tainted fruits for purposes of combating terrorism, the question has been raised, for instance by the former British Home Secretary, Charles Clarke, and the German Federal Minister of the Interior, Wolfgang Schäuble, whether or not statements made under torture may be used for the purpose of pre-venting a terrorist attack.¹⁰⁹ It was argued, in particular, that the cooperation between various intelligence agencies in the global fi ght against terror would make it impossible to ascertain whether some of the information obtained may be the result of torture. Would the police, having received information from a foreign secret service about a bomb which might soon explode in a pub-lic transportation facility, be required to assess the risk that this information might be the result of torture before ordering the evacuation of the transport facility? Even if the police had good reason to assume that torture had been used to extract the respective information, would they not nevertheless have the obligation to order the evacuation?

78 0 ese questions have been addressed, at least to some extent, in the House of Lords’ judgment cited above. For example, Lord Nicholls expressed the opinion that the Government cannot be expected to close its eyes to infor-mation at the price of endangering the lives of its citizens,¹¹⁰ and Lord Brown even indicated that the executive branch is bound to make use of all such infor-mation, as it is under a duty to safeguard the State.¹¹¹

79 It would indeed be unreasonable to require the police to check the pos-sible use of torture by foreign intelligence agencies before exercising their duty to prevent terrorist or other attacks and to protect the lives of human beings being endangered. But these preventive police actions are not carried out in the framework of any proceedings envisaged in Article 15. 0 e phrase ‘evidence in

¹⁰⁸ No. 219/2002, § 6.10.¹⁰⁹ See e.g. statement by British Home Secretary Charles Clarke, = e Guardian, 13 December

2005, in reference to the 8 December House of Lords ruling: ‘they held that there is an “exclusion-ary” rule precluding the use of evidence obtained by torture. However, they held it was perfectly lawful for such information to be relied on operationally, and also by the home secretary in mak-ing executive decisions.’ See also a statement made by German Minister of the Interior Wolfgang Schäuble in the Süddeutsche Zeitung, 16 December 2005: ‘It would be completely irresponsible if we were to say that we don’t use information where we cannot be sure that it was obtained in condi-tions that were wholly in line with the rule of law. We have to use such information.’

¹¹⁰ [2005] UKHL 71, [69].¹¹¹ Ibid, [161].



any proceedings’ only refers to the assessment of evidence before a judicial or administrative authority acting in accordance with certain rules of taking evi-dence laid down in the respective (criminal, civil or administrative) procedural code. In other words, the application of Article 15 presupposes the assessment of evidence in a formal procedure which leads to a decision of the respective court or administrative agency.

80 It might be diffi cult to draw the line between purely non-formal pre-ventive action by the executive branch and a decision by the executive branch as a result of formal administrative proceedings. If the police receive infor-mation from a foreign intelligence service that a particular person is planning to commit a terrorist attack, they might detain the person even if they have reason to believe that the information may have been obtained by torture. But the formal detention certifi cate issued by the British Home Secretary under the Immigration and Asylum Part of the Anti-Terrorism, Crime and Security Act 2001 is clearly an administrative decision arrived at in the course of formal administrative proceedings to which Article 15 CAT applies. Despite the fact that the December 2005 ruling of the House of Lords only applied to the judi-cial proceedings before the Special Immigration Appeals Commission and the Court of Appeal, it is beyond doubt that the standards developed by the House of Lords apply not only to the judicial bodies deciding on the lawfulness of deprivation of liberty in the second and third instance but also to the Home Secretary who issues the detention order in the fi rst instance. In other words, if the Home Secretary bases his or her decision on foreign intelligence informa-tion which might have been extracted by torture, he or she must investigate by all appropriate means before issuing a formal detention certifi cate whether or not the respective statements are the result of torture.¹¹²

5.2 Burden of Proof: # e Meaning of the Word ‘established’81 According to Article 15 CAT, only those statements are inadmissible as

evidence which are ‘established to have been made as a result of torture’. 0 is formulation gives room for a broad variety of diff erent interpretations, as the case law of the Committee against Torture and relevant domestic courts cited above shows. A literal reading of Article 15 might even support an understand-ing which would require the accused in a criminal trial to provide full evidence that his or her confession before an interrogating police offi cer or an incrimin-ating testimony by a witness before a foreign intelligence offi cer was extracted

¹¹² But see the distinction made by Lord Nicholls, ibid, [74] and [75], between the Home Secretary’s executive discretion and the Commission’s judicial function.


Article 15. Non-Admissibility of Evidence Extracted by Torture 533

by torture, a burden of proof which in almost no case could be met. On the other hand, it might be equally diffi cult for the prosecutor or any other govern-ment authority to provide full evidence that a given confession or witness state-ment was defi nitely not extracted by torture, in particular if such a statement was received from a foreign government to support an extradition request or from a foreign intelligence service in support of a criminal charge or detention order. Any interpretation which takes into account both the wording and the purpose of Article 15 must, therefore, aim at striking a fair balance between the legitimate interests of the State and of the individual against whom the evidence is invoked. In any case, the decision whether or not a particular piece of evidence is admissible must be taken by the judicial or administrative body in charge of the respective proceedings.

82 Although the Committee against Torture has adopted a fairly restrict-ive approach towards the interpretation of Article 15,¹¹³ it held that the appli-cant is only required to demonstrate that his or her allegations of torture are well-founded.¹¹⁴ 0 is means that the burden of proof to ascertain whether or not statements invoked as evidence in any proceedings, including extradition proceedings, have been made as a result of torture, shifts to the State.¹¹⁵

83 Similarly, the Hanseatic Higher Regional Court of Hamburg, in the case of El-Motassadeq cited above,¹¹⁶ recognized its duty to ascertain, by all available means of taking evidence, whether or not the witness testimonies provided by the US authorities, in light of press and NGO reports of the fre-quent US practice of torture against suspected terrorists, were in fact extracted by torture. 0 e only problematic issues were the fi nal conclusions of the Hamburg Court, namely that these testimonies were admissible in a criminal trial due to the fact that the veracity of these torture allegations, because of the non-cooperative attitude of the respective US and German government authorities, could not be fully established. In our opinion, the Hamburg Court failed to shift the burden of proof to those government authorities who actu-ally invoked the contested evidence. In light of well-founded allegations about the torture and enforced disappearance of the witnesses in US custody, it was the responsibility of the Prosecutor (or the Court) to prove beyond reasonable doubt that these testimonies were not extracted by torture, rather than to prove that they were actually obtained by torture.

¹¹³ See, in particular, the criticism of its decision in P.E. v. France, No. 193/2001, above, 3.2.¹¹⁴ G.K. v. Switzerland, No. 219/2002, § 6.11. See also P.E. v. France, No. 193/2001, § 6.6.¹¹⁵ G.K. v. Switzerland, No. 219/2002, § 6.10 with reference to P.E. v. France, No. 193/2001,

§ 6.3.¹¹⁶ See above, 4.1.



84 0 e clearest statement that the conventional approach to the burden of proof is inappropriate in relation to Article 15 can be derived from the House of Lords’ judgment of December 2005 cited above. 0 e Law Lords agreed on the need to devise a procedure that would aff ord protection to the appellant without imposing a burden of proof on either party that they would not be able to discharge.¹¹⁷ But they disagreed on the specifi c test in relation to the bur-den of proof. 0 e majority followed the test of Lord Hope that evidence should only be excluded if it is established, by means of diligent inquiries into the sources and on a balance of probabilities, that the evidence invoked was in fact obtained by torture.¹¹⁸ Again, this approach does not seem really to shift the burden of proof to the government authorities. In our opinion, the test put for-ward by Lord Bingham, and supported by Lords Nicholls and Hoff man, seems to be most in line with the letter and spirit of Article 15 CAT.¹¹⁹ According to this test for the burden of proof, the appellant must fi rst advance a plausible reason why evidence may have been procured by torture. It would then be for the court to inquire as to whether there is a real risk that the evidence has been obtained by torture, and if there is, the evidence should not be admitted. In other words, the evidence should only be admitted if the court establishes that there is no such real risk.

5.3 Does Article 15 CAT also Apply to Statements made as a Result of Cruel, Inhuman or Degrading Treatment?

85 Whereas Article 12 of the 1975 Declaration applies both to torture and other cruel, inhuman or degrading treatment, Article 15 CAT only refers to torture. 0 is has, however, to do with the fact that during the drafting of the CAT, States could not reach consensus on which State obligations should apply to all forms of ill-treatment and which to torture only. 0 e comprom-ise in Article 16, i.e. the deliberate decision to include a non-exhaustive list of CAT provisions which establish State obligations for all forms of ill-treatment, causes diffi cult questions of interpretation. In fact, many States wished to apply the rule of Article 15 to all forms of ill-treatment.¹²⁰

86 In the literature, the opinion seems to prevail, however, that Article 15 applies exclusively to torture.¹²¹ A systematic interpretation of Articles 15 and

¹¹⁷ See e.g. Lord Bingham and Lord Carswell in [2005] UKHL 71, [55] and [155].¹¹⁸ Ibid, [121], [158], [172].¹¹⁹ Ibid, [54]–[62], [80], [98].¹²⁰ See below, Art. 16, para. 67. See also Burgers/Danelius, 70–71, 95–96, 150. ¹²¹ Cf. Burgers/Danelius, 147 et seq.; Ingelse, 366.


Article 16. Cruel, Inhuman or Degrading Treatment or Punishment 557

limited to torture and does not extend to cruel, inhuman or degrading treat-ment encompassed in Article 16.⁶⁹

2.3 Inquiry Procedure42 In the inquiry procedure under Article 20, the Committee is competent

only to investigate the systematic practice of torture, not of other forms of ill-treatment.⁷⁰ Nevertheless, it sometimes also made observations beyond the nar-row concept of torture. For example, in its summary account of the results of the proceedings concerning Peru of 2001, the Committee qualifi ed the deplor-able detention conditions of the maximum security prisons at Challapalca and Yanamayo (situated in the Andes at a height of more than 4,500 metres above sea level, temperatures of minus 10° or 15° C without heating, no electricity, no drinking water, etc.) as amounting to cruel and inhuman treatment and pun-ishment and recommended to the Peruvian authorities to close down both pris-ons.⁷¹ While the suff ering of the detainees in these two prisons was certainly severe, there seemed to be no specifi c purpose in the sense of Article 1 to be achieved. In general, deplorable conditions of detention can only be qualifi ed as amounting to torture if detainees are subjected to such inhuman treatment with a specifi c intention and purpose, such as punishing them or extracting infor-mation. As regards Peru, the Committee qualifi ed the sensorial deprivation and almost total prohibition of communication to which some convicted guerrilla leaders are subjected in the El Calleo naval base as ‘persistent and unjustifi ed suff ering which amounts to torture’.⁷² Presumably, the distinguishing factor between both types of conditions of detention was not the severity of the suf-fering, but the fact that the complete solitary confi nement was specifi cally and intentionally directed against these detainees as an additional punishment.


3.1 Defi nition of Cruel, Inhuman or Degrading Treatment or Punishment

43 From the discussion of the defi nition of torture in Article 1 it became clear that the drafters of the Convention had relied more on the approach

⁶⁹ Cf., e.g., No. 49/1996, No. 166/2000 and No. 228/2003. See also above, Art. 3, 4.4.⁷⁰ See below, Art. 20. ⁷¹ A/56/44, §§ 40–41.⁷² Ibid, §§ 42–43.



taken by the European Commission of Human Rights in the Greek case than on the approach of the European Court of Human Rights in the Northern Ireland case.⁷³ It follows that the decisive criteria for distinguishing torture from cruel and inhuman treatment is not the intensity of the pain or suff ering infl icted but the purpose of the conduct, the intention of the perpetrator and the power-lessness of the victim.⁷⁴ Cruel and inhuman treatment or punishment, therefore, can be defi ned as the infl iction of severe pain or suff ering, whether physical or mental, by or at the instigation of or with the consent or acquiescence of a public offi cial or other person acting in an offi cial capacity. Such conduct can be both intentional or negligent, with or without a particular purpose. It does not require the specifi c situation of detention or direct control of the victim by the perpetrator, which is characteristic only for torture.⁷⁵ Cruel and inhuman treatment, therefore, also encompasses excessive use of force by law enforcement offi cials for other purposes, such as defending a person from unlawful violence, eff ecting a lawful arrest, preventing the escape of a person lawfully detained, quelling a riot or insurrection, or dissolving a demonstration. Outside the nar-row scope of torture, the infl iction of severe pain or suff ering may be justifi ed if such use of force serves a legitimate purpose and is not excessive. 6 e principle of proportionality must, therefore, be applied in order to assess whether the infl iction of severe pain or suff ering amounts to cruel or inhuman treatment or punishment. 6 ere are no clear legal criteria for distinguishing cruel from inhuman treatment, apart from our common understanding of the meaning of the words ‘cruel’ and ‘inhuman’.⁷⁶

44 Degrading treatment or punishment can be defi ned as the infl iction of pain or suff ering, whether physical or mental, which aims at humiliating the victim. Even the infl iction of pain or suff ering which does not reach the thresh-old of ‘severe’ must be considered as degrading treatment or punishment if it contains a particularly humiliating element.

⁷³ See above, Art. 1, paras. 94 et seq. ⁷⁴ On the distinction between torture and cruel, inhuman or degrading treatment, see

E/CN.4/2006/6. See Nowak, (2005) 23 NQHR 674.⁷⁵ See above, Art. 1, para. 114. But see Burgers/Danelius, 149 who even assume that ‘the victims

of acts referred to in article 16 must be understood as consisting of persons who are deprived of their liberty or who are otherwise under the factual power or control of the person responsible for the treatment or punishment’.

⁷⁶ According to the Oxford English Dictionary, ‘cruel’ is defi ned as 1. ‘disregarding or taking pleasure in the pain or suff ering of others’; or 2. ‘causing pain or suff ering’. 6 e word ‘inhuman’ is defi ned as 1. ‘lacking positive human qualities’; ‘cruel and barbaric’; or 2. ‘not human in nature or character’. One may conclude that there is no essential diff erence between cruel and inhuman treatment.


Optional Protocol922

standards of prevention against torture. . e delegations of China, Cuba, Egypt and the Syrian Arab Republic also spoke in favour of the two-pillar system and emphasized the establishment of strong national mechanisms with visiting functions and an international mechanism which would mainly pro-vide technical assistance. . e delegation of the United States of America sup-ported a three-pillar system, taking into account also the regional level, where States should be encouraged to consider adopting mechanisms that would provide for mandatory visits to places of detention such as those contained in the ECPT and its Protocol I.⁸

8 It was especially the mandatory nature of the proposed national prevent-ive mechanisms that was fi rst questioned by certain delegates, among them Switzerland, Denmark, Germany and Canada, but also the United States of America, Cuba and Japan. Others, however, like Guatemala, Argentina and Mexico, were of the opposite view and supported the mandatory concept.⁹ . e Working Group fi nally adopted the text proposed by the Chairperson-Rapporteur. At its 50th meeting on 22 April 2002, the Commission on Human Rights fi nally adopted the text of the OP submitted by the Chairperson-Rapporteur at the tenth session of the Working Group by 29 votes to 10.¹⁰


9 . e proposal to establish national preventive mechanisms was intro-duced for the fi rst time by Mexico in February 2001.¹¹ Mexico belonged to the group of States which strongly opposed the Costa Rica Draft because of its alleged interference with State sovereignty and which, therefore, favoured the idea of prior consent for every visit by the Subcommittee.¹² Its alterna-tive draft was aimed at protecting the principle of State sovereignty and non-interference with internal aff airs by replacing the Subcommittee, as far as possible, with a domestic body. In the Mexican Draft, the function of the Subcommittee was reduced to being ‘responsible for supporting and super-vising the work carried out by national mechanisms’.¹³ It is, therefore, not surprising that many States and NGOs were originally very sceptical about

⁸ Ibid, §17.⁹ Ibid, §§ 38, 40, 80.

¹⁰ CHR Res. 2002/33. See above, Art. 1 OP, 2.2.¹¹ E/CN.4/2001/WG.11/CRP.1. See above, 2.¹² Cf. above, Art. 1 OP, 2.2.¹³ Art. 2 of the Mexican Draft, E/CN.4/2001/WG.11/CRP.1.

39-Nowak-OP 3.indd 92239-Nowak-OP 3.indd 922 3/10/2008 6:39:39 AM3/10/2008 6:39:39 AM

Article 3. Establishment of the National Preventive Mechanism 923

the intentions behind the Mexican Draft. . ey called for a proper balance between the national and international components of the two-pillar system, which ultimately emerged by way of compromise. It should, however, not be forgotten that some of the States, which were originally in the same group as Mexico, such as Cuba, China and Japan, maintained their opposition to the OP and voted both in the Human Rights Commission and in ECOSOC against the adoption of the OP.¹⁴

10 Irrespective of the intentions behind the Mexican Draft and the con-troversies during the drafting process, the fi nal outcome seems to have sig-nifi cantly strengthened the OP. After all, even the most effi cient system of preventive visits to all places of detention in an increasing number of States parties by one international body would soon have reached its fi nancial and capacity limits. Even in Europe with a membership of the Council of Europe of fewer than 50 States, the CPT, with a number of members equal to the number of States parties, can only carry out regular visits of one to three weeks every four to fi ve years, in which it visits only a fairly limited amount of detention facilities. . is is the main reason why the CPT has regularly recommended to European States to establish domestic visiting bodies.¹⁵ Assuming that the OP will be ratifi ed by more than 150 States from all regions, the Subcommittee, as a part-time body with no more than 25 members, could only carry out regular visits at intervals of more than ten years. . e preventive eff ect of such visits would be more than limited.

11 In addition, the OP is based on the general principle of international law that States have the primary responsibility for an effi cient protection of human rights and that international monitoring bodies can only play a sup-plementary role in ensuring States’ compliance with their international obli-gations. If truly independent, national visiting bodies are in a better position than a UN body to visit detention facilities regularly all over the country, to conduct ad hoc visits to particular places of detention, to identify the major problems and shortcomings and to address these problems in an appropriate manner. . e two-pillar system can work in a complementary manner as the UN Subcommittee, in addition to conducting visits on its own, can provide adequate resources to assist national preventive mechanisms in carrying out their tasks eff ectively.¹⁶

¹⁴ See above, Art. 1 OP, 2.2.¹⁵ See CPT/Inf (91)10, Ö-PM 1, § 87; CPT/Inf (92) 5, M-PM 1, § 93; CPT/Inf (95) 14, Ir-PM

1, § 57; CPT/Inf (96) 25, M-PM 2, § 43; CPT/Inf (96) 28, Ö-PM 2, § 94; Kriebaum, 273 et seq.; Evans/Morgan, 334.

¹⁶ Cf. below, Art. 11(b) OP.



12 According to Article 3 OP, each State party shall ‘set up, designate or maintain at the domestic level one or several visiting bodies’. . e OP thus adopts a fl exible approach as it leaves it up to the States parties either to set up entirely new national preventive mechanisms (if no appropriate body exists), or to designate or maintain existing bodies, provided they meet the requirements of independence, impartiality and effi ciency, as stipulated in Articles 18 and 19 OP. In larger, highly decentralized or federal States, it is advisable to establish or designate more than one national preventive mechanism.¹⁷

13 . e essential features and functions of national preventive mechanisms are further defi ned in Part IV of the OP.¹⁸ Above all, the expert members and staff shall enjoy full functional independence and have the required capabilities and professional knowledge. . e composition shall be representative of the popu-lation, similar to national human rights institutions established in accordance with the Paris Principles.¹⁹ In addition to carrying out regular visits to all places of detention, examining the treatment of detainees and making recom-mendations to the relevant authorities with the aim of preventing torture and improving conditions of detention, national preventive mechanisms shall also submit proposals and observations concerning existing or draft legislation and publish annual reports on their activities. States are under an obligation to provide national preventive mechanisms with access to all places of detention, their installations, facilities and documents and to grant them the opportunity to have private interviews with detainees.

¹⁷ Cf. below, Art. 17 OP. See also IIHR/APT Manual, 69.¹⁸ See below, Arts. 17 to 23 OP.¹⁹ GA Res. 48/143 of 20 December 1993, Annex.


Article 4. Obligation to allow Preventive Visits 931

visit and inspect any place where persons were or might be detained in any State party to the OP. In its view, this was incompatible with the principle of accountability and the need for reasonable checks and balances on any grant of power.¹⁴ 1 e US delegation referred to its alternative draft, submitted during the 5th meeting¹⁵ of the Working Group on 16 January 2002, which further elaborated ideas presented by it during previous sessions. 1 is draft aimed to recognize the valuable role visiting mechanisms, such as the CPT, could play at the regional level. 1 e delegation of Cuba found that this proposal was too vague regarding which places of detention could be subject to visitations.

13 At its 50th meeting on 22 April 2002, the Commission on Human Rights fi nally adopted the text of the OP submitted by the Chairperson-Rapporteur at the tenth session of the Working Group by 29 votes to 10.¹⁶


3.1 Places of Detention14 Article 4 OP goes beyond the comparable provision in Article 2 ECPT

as it contains a comprehensive defi nition of the term ‘deprivation of liberty’ and explicitly refers to a ‘public or private custodial setting’. 1 e relevant provisions in the two paragraphs of Article 4 seem, however, to contain certain contradic-tions and are in need of interpretation.

15 Article 4(1) contains an explicit obligation of States parties to allow visits to any place under its jurisdiction and control where persons are or may be deprived of their liberty, ‘either by virtue of an order given by a public authority or at its instigation or with its consent or acquiescence’. 1 is is a fairly broad defi nition, as it also encompasses private custodial settings where persons are detained by non-State actors with the mere knowledge and acquiescence of a public authority. For example, if the police are aware that private paramilitary groups hold people in detention and do nothing to prevent this, they become complicit by acquiescence and the Subcommittee or relevant NPM must be granted access. 1 e same holds true for private hospitals or nursing homes, which hold persons against their will with the mere knowledge and consent of a public authority.

¹⁴ E/CN.4/2002/78, § 57.¹⁵ Ibid.¹⁶ CHR Res. 2002/33 of 22 April 2002. See above, Art. 1 OP, 2.2.



16 Article 4(2) contains, however, a somewhat more limited defi nition of the term ‘deprivation of liberty’. It includes the placement of a person in a ‘pri-vate custodial setting’, as long as that person is ‘not permitted to leave at will by order of any judicial, administrative or other authority’. In other words, mere consent or acquiescence, as in the examples provided above, would not be suf-fi cient, as paragraph 2 seems to require an explicit order of a public authority. A systematic interpretation of both provisions, in accordance with the object and purpose of the treaty to provide a comprehensive monitoring of all places of detention, seems to require that the term ‘deprivation of liberty’ in Article 4(2) shall be interpreted in line with the broader defi nition of the term ‘places of detention’ in Article 4(1) and encompasses also private and unoffi cial places of detention for which the State can be held accountable.¹⁷ In any case, the visit-ing bodies must be granted access to detention facilities which governments have outsourced to private companies.

17 1 e phrase ‘where persons are or may be deprived of their liberty’ in Article 4(1) confi rms that visiting mechanisms shall not be denied access to a place of detention by the mere fact that, at the time of the visit, no persons are actually held there. It is important that the visiting bodies have access to (allegedly) empty places of detention, to inspect all installations, facilities, detention registers and other relevant documents in order to verify whether the place is actually empty and whether the conditions of detention meet the relevant domestic and international standards.

18 Each State party is required to grant the visiting mechanisms access to all places of detention ‘under its jurisdiction and control ’. 1 is means, on the one hand, that the authorities have no obligation to provide access to places of detention which are under their jurisdiction, but not under their de facto control. If parts of a State’s territory are occupied by another State, such as the Northern part of Cyprus which is occupied by Turkey, or administered by a UN transitional administration, such as the territory of Kosovo in Serbia, or under the de facto control of insurgent groups, such as certain areas con-trolled by the LTTE in Sri Lanka, or governed by de facto authorities, such as the territories of Abkhazia and South Ossetia in Georgia, the respective governments are not required to provide access to the places of detention in such territories.

19 At the same time, foreign States exercising jurisdiction and control outside their own territories over places of detention, such as the Turkish authorities in the Northern part of Cyprus or the US authorities at the detention

¹⁷ Cf. in this sense IIHR/APT Manual, 73.


Article 4. Obligation to allow Preventive Visits 933

facilities in Guantánamo Bay, Cuba, or in relation to detention facilities under their control in Iraq and Afghanistan, are under an obligation, provided they become States parties to the OP, to allow visits of the UN Subcommittee and the respective NPMs.¹⁸

3.2 Missions and Visits to Places of Detention without Prior Consent

20 1 e Protocol uses the term ‘visits’ in a double sense: for missions of the Subcommittee to the territory of States parties and for visits to places of deten-tion. For the sake of clarity, we will distinguish between both terms and apply them in the sense envisaged in Article 1 (new) of the EU Draft.¹⁹ A mission shall refer to the travel and all other activities carried out by the Subcommittee in a State party’s territory. A visit means any inspection of a detention facility by either the Subcommittee or a NPM.

21 During the drafting of the OP in the Working Group, several States maintained that the principles of State sovereignty and territorial integrity demand that the Subcommittee on Prevention need to obtain prior consent from the respective government for any mission to its territory.²⁰ Other States strongly argued that such a requirement would contradict the very purpose of the Protocol, namely to conduct preventive visits to places of detention. 1 e fi nal text constitutes the following compromise.

22 By becoming a party to the OP, States waive their sovereign right to give prior consent to a mission by the Subcommittee to their territory. 1 is clearly follows from the obligation they undertake in Article 4.²¹ On the other hand, the Subcommittee, by virtue of Article 13(2) OP, shall ‘notify the States Parties of its programme in order that they may, without delay, make the necessary practical arrangements for the visits to be conducted’. 1 is prior notifi cation of a mission is in line with Article 8(1) ECPT and the practice of the CPT, which usually informs the governments concerned sev-eral weeks or even months in advance of its intention to carry out a mission and of the respective dates.²²

23 During the mission, the Subcommittee is free to visit any place of deten-tion without prior notice and consent. 1 e same holds true for the NPMs.

¹⁸ On the notion of ‘territory under its jurisdiction’ see also above, Art. 2, 4.1.2.¹⁹ E/CN.4/2001/WG.11/CRP.2. See above, para. 8. On this terminological problem in relation

to the ECPT see Kriebaum, 98. ²⁰ See above, 2.2.²¹ Cf. also IIHR/APT Manual, 70.²² Cf. Kriebaum, 180 et seq., Evans/Morgan, 184 et seq.



Although the OP does not contain any specifi c provision referring to unan-nounced visits to places of detention,²³ this follows from the purpose of the OP to allow for visits aimed at preventing torture and ill-treatment, as is spelled out in Article 1 OP. On the other hand, the States parties are permitted by virtue of Article 14(2) to object to a visit to a particular place of detention ‘on urgent or compelling grounds of national defence, public safety, natural disaster or serious disorder in the place to be visited that temporarily prevent the carrying out of such a visit’.²⁴ Again, this compromise is in line with Article 9 ECPT. In practice, States parties have only made use of this provision in exceptional cases.²⁵

²³ But cf. Art. 8(1) ECPT, which at least stipulates that the CPT, after a notifi cation of its inten-tion to carry out a mission, ‘may at any time visit any place referred to in Article 2’. On the interpret-ation of this provision see Kriebaum, 180 et seq., Evans/Morgan, 184 et seq.

²⁴ Cf. below, Art. 14 OP.²⁵ Cf. Kriebaum, 112 et seq., Evans/Morgan 186 et seq.



independence, degree of eff ectiveness, links with other national institutions, governmental and non-governmental status, the importance of fl exibility and the impact of their recommendations.⁹

7 Some delegations stated that, in some countries, national institutions for the protection of human rights clearly lacked independence and eff ectiveness, and expressed concern about the ability of such institutions to reach the goals set forth in the Protocol.

8 During the tenth session of the Working Group from 14 to 25 January 2002, the concept of NPMs was further elaborated.¹⁰ Many delegations, including those of Spain (on behalf of the European Union), Argentina, Egypt, Georgia, El Salvador, the Republic of Korea, Poland and South Africa, made statements regarding the ways and means of ensuring the independence of the national mechanisms. It was emphasized that these mechanisms should be established on the basis of the Paris Principles, that they should be independ-ent from any other national authority, able to issue recommendations to the concerned authorities and be adequately funded.

9 In the proposal presented by the Chairperson-Rapporteur, the concept of national preventive mechanisms was described in Part IV, where it was stated that States would be required to maintain, designate or establish national mechanisms, based on the Paris Principles, to work in close cooperation with the Subcommittee.¹¹

10 At its 50th meeting on 22 April 2002, the Commission on Human Rights fi nally adopted the text of the OP submitted by the Chairperson-Rapporteur at the tenth session of the Working Group by 29 votes to 10.¹²


3.1 Independence of NPMs11 Article 18(1) OP requires States parties, fi rst of all, to guarantee the

independence of NPMs and of their personnel. Independence is defi ned as ‘ functional independence’, meaning that NPMs must enjoy independence from all State authorities (the legislative, executive and judicial branches of government) in order to fulfi l their functions of conducting preventive visits

⁹ E/CN.4/2001/67, § 28.¹⁰ E/CN.4/2002/78, §§ 37 et seq.¹¹ Ibid, §50.

¹² CHR Res. 2002/33 of 22 April 2002. See above, Art. 1 OP, 2.2.


Article 18. Independence, Pluralism and Effi ciency 1075

to places of detention, of examining conditions of detention and the treatment of detainees, and of making recommendations to the relevant authorities with the aim of preventing torture and ill-treatment in custody.

12 - is functional independence of NPMs contains diff erent aspects. First, any NPM shall be based in a clear constitutional or at least legislative framework which guarantees the structural independence from all branches of government, above all from the executive branch, including the police, military and other security forces. - is means that neither the members nor the staff of the NPM may be subject to any orders or instructions by any State authority. Civil servants may only be appointed as members or staff of an NPM if they are not subject to any orders or instructions during their terms of offi ce. Secondly, the members and staff of NPMs shall be appointed for a minimum period of four to six years and shall be protected against any arbitrary removal during their term of offi ce.¹³ Furthermore, NPMs shall enjoy fi nan-cial independence from the executive branch and dispose of a suffi cient budget allocated by parliament. - is important aspect of functional independence is underlined by the explicit obligation of States parties under Article 18(3) ‘to make available the necessary resources for the functioning of the national preventive mechanisms’.

3.2 Pluralism of Composition13 - e principle of pluralism in the composition of national human rights

institutions, which plays an important role in the Paris Principles, also applies to the NPMs. Article 18(2) explicitly provides that States parties, in establish-ing NPMs, shall ‘strive for a gender balance and the adequate representation of ethnic and minority groups in the country’. Under international human rights law, the term ‘minorities’ usually refers to ‘national, ethnic, religious and linguistic minorities’,¹⁴ but in the context of the OP, this phrase could also be interpreted in a broader manner, including gays and lesbians, migrants, and persons with disabilities. Although a provision similar to Article 5(2) OP relating to the Subcommittee on Prevention was not included in Article 18,¹⁵

¹³ Although NPMs are non-judicial institutions, the relevant provisions of international human rights law guaranteeing the independence of the judiciary, above all Art. 14 CCPR and the respect-ive jurisprudence of the Human Rights Committee, may be taken into account. Cf. Nowak, CCPR-Commentary, 319 et seq.

¹⁴ See, above all, Art. 27 CCPR and the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities of 1992. Cf. Nowak, CCPR-Commentary, 642 et seq.

¹⁵ See above, Art. 5 OP. Art. 4(3) of the Mexican Draft of 2001 contained a similar provision for the composition of NPMs (see above, para. 3), but this provision was not included in the fi nal text.



persons with diff erent professional backgrounds, including lawyers, doctors, forensic experts, psychologists, social workers, human rights experts and per-sons with particular knowledge in the administration of criminal justice, police or prison administration shall be represented in the composition of NPMs and their staff .¹⁶

3.3 Effi ciency of NPMs14 Finally, the effi ciency of NPMs shall be achieved by a high level of cap-

abilities and professional knowledge of both the members and staff of NPMs, as required by Article 18(2). Since the members of NPMs will usually exercise this function on a part time basis, it is important that they receive an adequate honorarium which makes this position attractive for the most competent and professional individuals. In addition, States parties shall provide suffi cient fi nancial resources for hiring qualifi ed staff in suffi cient numbers. After all, to conduct regular visits to all places of detention in a country, to examine regularly the treatment of persons detained therein and to make recommen-dations to the relevant authorities is a highly professional, time consuming, responsible and emotionally demanding task which cannot be achieved by a few volunteers. States parties should keep this in mind when deciding to ratify the Protocol and to set up NPMs.

15 In addition to the guarantees of independence and effi ciency laid down in Article 18, Article 35 OP also stipulates that members of NPMs ‘shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions’.¹⁷

¹⁶ Cf. also IIHR/APT Manual, 97.¹⁷ See below, Art. 35 OP, 3.



7 Most delegations considered that the mandate of national mechanisms should be as broad as possible and that they should apply universal standards for the protection of detainees.⁶

8 At the tenth session of the Working Group from 14 to 25 January 2002, the concept of national preventive mechanisms was further elaborated.⁷ With regard to the functions of these mechanisms, the delegations of China, the United States of America and Egypt proposed that national and regional bod-ies should take the leading role in visiting places of detention. , e delega-tion of the United States of America, which strongly opposed the concept of establishing mandatory visiting mechanisms with unrestricted authority to visit places of detention, suggested instead a system of limited authority that would provide checks and balances and ensure accountability.⁸

9 In the proposal presented by the Chairperson-Rapporteur, the con-cept of national preventive mechanisms was described in Part IV, where it was stated that States would be required to maintain, designate or establish national mechanisms, based on the Paris Principles, to work in close cooperation with the Subcommittee.⁹ During the discussions on the proposal, the delegation of Japan stated that there were no reasonable grounds for the establishment of a mandatory national visiting mechan-ism that would have basically the same mandate as an international visit-ing mechanism.¹⁰

10 At its 50th meeting on 22 April 2002, the Commission on Human Rights fi nally adopted the text of the OP submitted by the Chairperson-Rapporteur at the tenth session of the Working Group by 29 votes to 10.¹¹


3.1 Visits to Places of Detention11 Whereas Article 11 OP, which defi nes the mandate of the Subcommittee

on Prevention, focuses on its task of visiting places of detention, Article 19 OP, which defi nes the mandate of the NPM as the domestic counterpart of the Subcommittee, does not even mention any visits and concentrates on the

⁶ E/CN.4/2001/67, § 29.⁷ E/CN.4/2002/78, §§ 37 et seq.⁸ Ibid, § 40. See above, para. 5.⁹ Ibid, § 50. See E/CN.4/2002/WG.11/CRP.1.

¹⁰ Ibid, § 80. ¹¹ CHR Res. 2002/33 of 22 April 2002. See above, Art. 1 OP, 2.2.


Article 19. Mandate and Power of National Preventive Mechanisms 1081

power to ‘regularly examine the treatment of the persons deprived of their lib-erty’. , e word ‘examine’ seems a little surprising in the context of a treaty with an exclusive object of prevention,¹² but it refl ects the experience that it is dif-fi cult in practice to distinguish the preventive from the investigative function of visits to places of detention.¹³ But the fact-fi nding by the NPM, as by the Subcommittee, is conducted with a view to strengthening the protection of detainees against torture.

12 Article 19(a) OP does not define further what the phrase ‘regularly examine’ means. But for the purpose of achieving a meaningful prevent-ive, i.e. deterrent, effect, it is essential that the NPM conducts visits to all larger places of detention every few months. There is, of course, some f lexibility for NPMs to determine the exact frequency of their visits, tak-ing into account certain rules to be established by the Subcommittee on the basis of its advisory function stipulated in Article 11(b) OP as well as the nature of the different types of detention facilities. For example, pre-trial detention facilities and detention centres for illegal migrants pending deportation shall be visited more frequently than prisons for long-term convicts, bearing in mind that the f luctuation in such facilities is much higher and the contact with the outside world much more restrict-ed.¹⁴ As with the CPT and the Subcommittee on Prevention, NPMs shall conduct both regular visits, follow-up visits and ad hoc visits in particu-lar circumstances.¹⁵ The terms ‘persons deprived of their liberty’ and ‘places of detention’ in Article 19(a) OP shall be interpreted in line with the respective definitions in Article 4(1) and (2) OP¹⁶ and the respective practice of the CPT.

3.2 Reports on the Visits13 On the basis of its experience with conducting regular, follow-up

and ad hoc visits to various places of detention, the NPMs shall prepare reports and make recommendations to the relevant authorities with the aim of improving the conditions of detention and preventing torture and ill-treatment of detainees. In this task, the NPM may be advised and assisted

¹² See above, Art. 1 OP.¹³ See above, Art. 12 OP, 3.¹⁴ Cf. IIHR/APT Manual, 98.¹⁵ Cf., mutatis mutandis, the diff erent types of country missions to be conducted by the

Subcommittee: see above, Art. 13 OP, 3.1.¹⁶ See above, Art. 4 OP.



by the Subcommittee on Prevention in accordance with Article 11(b)(iii) OP.¹⁷ In making recommendations, the NPMs shall take the relevant norms of the United Nations into consideration.¹⁸

14 Although the Protocol is not very explicit on this issue, the reports of the NPMs, including its recommendations, shall be submitted to the ‘rele-vant authorities’ of the country in accordance with Article 19(b) OP. Since the mandate of the NPMs covers all places of detention in the broadest sense, including prisons, police lock-ups, psychiatric hospitals and military deten-tion centres, the respective reports shall be sent to various authorities, includ-ing the Ministers of Interior, Justice, Defence and Health. It is, therefore, advisable that the legislative act establishing a NPM shall also defi ne one central authority, such as the central government, the Prime Minister or the national parliament, to whom the NPM submits its reports. In addition, it is advisable that the NPM also submits its reports to the Subcommittee on Prevention in order to enable it to fulfi l its advisory, assistance and cooper-ation duty vis-à-vis the NPM.¹⁹ , e legal basis for submitting reports to the Subcommittee can be found in Article 20(f) OP which provides for the right of NPMs to send the Subcommittee information and to meet with it.²⁰ , ere is no explicit rule in the Protocol which would require the NPMs to keep their reports confi dential, similar to Articles 2(3) OP and 16 OP in relation to the Subcommittee. Article 21(2) OP only provides in this respect that confi dential information collected by the NPM shall be privileged and that no personal data shall be published without the express consent of the per-son concerned.²¹ , is diff erence between the Subcommittee and the NPMs in respect of the confi dentiality of their reports might be explained by the fact that a report on a prison visit by a domestic body seems to be less intrusive than a report by an international monitoring body.

3.3 Consulting Function15 In addition to making recommendations on the treatment of detainees,

the NPM is also empowered by Article 19(c) OP to submit proposals and observations concerning existing or draft legislation. , is consulting function

¹⁷ See above, Art. 11 OP, 3.¹⁸ For a list of the relevant UN norms see above, Art. 2 OP, 3.¹⁹ See above, Art. 11(b) OP.²⁰ See below, Art. 20 OP, 3.²¹ See below, Art. 22 OP.


Article 19. Mandate and Power of National Preventive Mechanisms 1083

is typical for national human rights institutions established in accordance with the Paris Principles. In relation to the NPMs, such proposals may relate to all legislation in the context of the administration of criminal justice, including police and prison laws and regulations, but also to aliens legislation, health legislation etc.



required to maintain, designate or establish national mechanisms, based on the Paris Principles, to work in close cooperation with the Subcommittee.¹⁰ During the discussions on the proposal, the delegation of Japan stated that there were no reasonable grounds for the establishment of a mandatory national visiting mechanism that would have basically the same mandate as an international visiting mechanism.¹¹

9 At its 50th meeting on 22 April 2002, the Commission on Human Rights fi nally adopted the text of the OP submitted by the Chairperson-Rapporteur at the tenth session of the Working Group by 29 votes to 10.¹²


3.1 Cooperation between NPMs and the Subcommittee on Prevention

10 Article 20 is almost identical to Article 14 OP. 4 e importance of unre-stricted access to all places of detention, private interviews with detainees and unre-stricted access to all relevant information for a professional assessment of the conditions of detention and the risk of torture as well as the various issues of interpretation related to these competences of the Subcommittee have been discussed above and the relevant conclusions apply equally to the NPMs and the interpretation of Article 20 OP.¹³ But there are a few important dif-ferences between the respective mandates which raise diffi cult questions of interpretation.

11 4 e fi rst diff erence is the additional obligation of States parties under Article 20(f) to grant NPMs the ‘right to have contacts with the Subcommittee on Prevention, to send it information and to meet with it’. 4 is provision cor-responds to the obligation of the Subcommittee under Article 11(b)(ii) and (iii) to maintain direct, and if necessary confi dential, contact with the NPMs, and off er them training, advice and technical assistance in the evaluation of the needs and the means necessary to strengthen the protection of detainees against torture and ill-treatment. In addition, Article 12(c) OP contains an obligation of States parties to ‘encourage and facilitate contacts’ between the Subcommittee on Prevention and NPMs, and Article 16(1) stipulates that the

¹⁰ Ibid, § 50. See also E/CN.4/2002/WG.11/CRP.1.¹¹ Ibid, § 80.¹² CHR Res. 2002/33 of 22 April 2002. See above, Art.1 OP, 2.2.¹³ See above, Arts. 12 and 14 OP.


Article 20. Obligations of States Parties to Facilitate Visits 1089

Subcommittee shall communicate its mission reports, including its recom-mendations and observations, confi dentially to the State party and, ‘if rel-evant’, to the NPM. It is clear from a combined reading of these provisions that both bodies shall closely cooperate, meet and exchange information, and that the Subcommittee shall inform and assist NPMs in the conduct of their tasks. But there is no explicit obligation on a NPM to report to the Subcommittee and inform it about its visits to places of detention, its fi ndings as to the conditions of detention and treatment of detainees, including evidence of torture and ill-treatment, and of its recommendations to the relevant authorities.¹⁴ 4 e NPMs only have a right, but no duty, to send information to the Subcommittee. Moreover, there is not even a reporting obligation on NPMs vis-à-vis their own governments regarding their visits to places of detention. Under Article 19(b) OP, NPMs shall only be granted the ‘power . . . to make recommenda-tions to the relevant authorities’,¹⁵ and Article 23 contains a general obligation of States parties to ‘publish and disseminate the annual reports’ of the NPMs.

12 In other words, if a NPM refuses to cooperate with the Subcommittee and/or to send it any reports or any other information, it does not violate any explicit obligation under the Protocol. But such refusal to cooperate prevents the Subcommittee from exercising its duties in regard to NPMs under Article 11(b). 4 is also raises the question to whom NPMs are accountable. Since they are established by a legislative act in their respective countries, it is up to the authorities of these countries to hold them accountable. But eff ective meas-ures by the respective governments might endanger their independence, as guaranteed under Article 18 OP.¹⁶ We would, therefore, recommend that the Subcommittee, in its RoP under Article 10(2) OP, create an obligation on NPMs to submit to the Subcommittee, upon its request, relevant informa-tion. Such an obligation was already contained in the Mexican Draft of 2001 but was later deleted.¹⁷ Similarly, States parties, when establishing NPMs in accordance with Article 17 OP, should provide for an explicit obligation of

¹⁴ Cf., however, Art. 7(1)(b) of the Mexican Draft of 13 February 2001 which had provided that NPMs shall ‘regularly inform the Sub-Committee of their observations and recommendations’. See above, para. 3.

¹⁵ See above, Art. 19 OP, 3.¹⁶ See above, Art. 18(1) OP.¹⁷ Cf. Art. 16(2) of the Mexican Draft of 13 February 2001: ‘4 e Sub-Committee may request

any information from national mechanisms that may enable it to assess needs and measures to be taken to strengthen the protection of persons deprived of their liberty against torture and other forms of cruel, inhuman or degrading treatment or punishment, including information concern-ing the number and location of places of detention, the persons deprived of their liberty and their treatment’. See above, para. 3.



NPMs to cooperate with the Subcommittee and to provide it with relevant information.

3.2 Can Governments Object to an NPM Visit?13 Article 14(1)(c) OP contains an obligation of States parties to grant the

Subcommittee ‘unrestricted access to all places of detention’, subject to the exceptional right of States parties under Article 14(2) to object to a visit to a particular place of detention on specifi c grounds.¹⁸ Similarly, Article 6(1)(c) of the Mexican Draft, which introduced the idea of visits to places of detention by NPMs, guaranteed NPMs unrestricted access to all places of detention, subject to Article 6(2) which provided that such ‘visits may not be prohibited except in cases of absolute military necessity or serious disturbances in the place to be visited and then only as an exceptional and temporary measure’.¹⁹ Article 15(c) of the EU Draft, which only proposed a right, but no duty, of States parties to establish a national mechanism, provided for ‘unrestricted access to all places where persons are deprived of their liberty under all situa-tions, including in peacetime, times of public disorder or states of emergency and during war in accordance with international humanitarian law’, i.e. access by NPMs to places of detention without any restriction whatsoever.²⁰ 4 e fi nal text of Article 20 OP, which is based on the compromise proposal of the Chairperson-Rapporteur, Elizabeth Odio-Benito from Costa Rica, deleted the word ‘unrestricted’ before ‘access’ in paragraphs (a), (b) and (c), as well as the exceptional limitation clause as proposed by Mexico.

14 A literal interpretation of Article 20(c) OP leads to the conclusion that NPMs shall have access to all places of detention and their installations and facilities. In the absence of any limitation clause comparable to Article 14(2), this access seems to be unrestricted, which would correspond to the explicit provisions and intentions of the EU Draft. On the other hand, it was precisely this word ‘unrestricted ’ which the Chairperson deleted in her fi nal draft and which distinguishes Article 20(c) from the comparable provision of Article 14(1)(c). A comparative analysis of Articles 14(2) and 20(c) could, therefore, be interpreted in the sense that certain restrictions might be permitted. But, con-trary to Article 14(2), the reason and extent of such restrictions are not defi ned, and even the Mexican Draft had only envisaged ‘cases of absolute military

¹⁸ See above, Art. 14 OP, 3. Similar provisions are contained in Arts. 8(2)(c) and 9 ECPT.¹⁹ E/CN.4/2001/WG.11/CRP.1. See above, para. 3.²⁰ E/CN.4/2001/WG.11/CRP.2. See above, para. 4.


Article 20. Obligations of States Parties to Facilitate Visits 1091

necessity or serious disturbances in the place to be visited as an exceptional and temporary measure’.

15 Article 32 VCLT permits the use of the travaux préparatoires only when the textual approach either leaves the meaning of a treaty provision ambigu-ous or obscure, or leads to a manifestly absurd or unreasonable result.²¹ Article 20(c) OP is not particularly ambiguous or obscure, and an unrestricted right of access of NPMs to all places of detention cannot be regarded as an absurd or unreasonable result of interpretation. On the other hand, it might not be unreasonable for a government, in the exceptional case of serious prison riots, to prevent a NPM temporarily from entering such a prison. In any case, even the travaux préparatoires, if at all accepted as a supplementary method of inter-pretation, clearly suggest that such restrictions could only be justifi ed as a truly exceptional and temporary measure, as envisaged in the Mexican Draft. 4 e grounds of public safety or natural disaster, as foreseen in Article 14(2) in rela-tion to a visit of the Subcommittee, could certainly not be invoked as a reason for denying a NPM access to a detention facility.

²¹ On the interpretation of Art. 32 VCLT see, e.g., Brownlie, 605 et seq., with further references.


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CAT Commentary - Combined Extracts